R v GS - [2003] NSWCCA 73

No judgment structure available for this case.

CITATION: Regina v GS [2003] NSWCCA 73 revised - 10/04/2003

HEARING DATE(S): 19 March 2003

JUDGMENT DATE:
3 April 2003

JUDGMENT OF: Santow JA at 1; Buddin J at 2; Smart AJ at 48

DECISION: Appeal against convictions allowed. Convictions and sentences quashed. That there be a new trial in relation to all counts.

CATCHWORDS: Sexual offences - delay in complaint - sufficiency of "Longman" directions - use of evidence of "uncharged acts".

LEGISLATION CITED: Criminal Appeal Rules

CASES CITED: Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541
Crampton v The Queen (2000) 206 CLR 161
Doggett v The Queen (2001) 208 CLR 343
Longman v The Queen (1989) 168 CLR 79
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

PARTIES :
Regina
GS

FILE NUMBER(S): CCA 60165/02

COUNSEL: R Hulme SC (Crown)
P Winch (Appellant)

SOLICITORS: SE O'Connor (Crown)
DJ Humphreys (Appellant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/41/0028

LOWER COURT
JUDICIAL OFFICER : Coorey DCJ

60165/02

SANTOW JA
BUDDIN J
SMART AJ
THURSDAY 3 APRIL 2003

60156/02 – REGINA v G S

Judgment

1 SANTOW JA: I agree with the judgment of Buddin J and with the additional observations of Smart AJ.

2 BUDDIN J: The appellant was tried and convicted upon an indictment containing ten counts which alleged various forms of sexual misconduct on his part. The offences were alleged to have occurred during the period between May 1988 and February 1996. At the time of the alleged offences, the appellant was living in a de facto relationship with the complainant’s mother. The complainant was born in January 1981 and was thus aged 7 at the time of the first offence and 14 or 15 at the time of the last of the offences. The appellant was sentenced to an effective overall term of four years’ imprisonment with a non-parole period of two years, with both periods ordered to date from the 21 June 2001 which was the date upon which the jury returned with verdicts. As there is no application for leave to appeal against the sentences imposed, it is not necessary to make any further reference to that issue other than to note that the appellant is due for release on 20 June of this year.

3 The grounds of appeal in relation to the appellant’s conviction are in the following terms:

1 The trial miscarried in that:

(a) the learned trial judge directed the jury in such a way that the onus of proof was reversed .

(b) The learned trial judge misdirected the jury in relation to the impact of delay between the alleged offences and complaint.

2 The trial miscarried as a result of the failure of the trial judge to warn the jury of the use to be made of evidence of uncharged sexual acts.

3 The trial miscarried as a result of the trial judge’s failure to assist the jury by reminding them of evidence when requested to do so.

4 The evidence which was led at the trial from the complainant has been helpfully summarised in the Crown submissions. That summary appears below:

The complainant, C, an assistant nurse, was born on 26 January 1981. When she was younger, she lived in Kandos with her mother Mrs C, her father Mr C and her older sister M. When her parents separated, the complainant and her sister lived with their mother.

Prior to her parents' separation, the complainant's mother worked as a cook and also served at the counter in a cafe in Kandos called The Paragon Cafe. The appellant also worked there. The complainant and her sister M would often help out in the cafe by filling the drink fridge with drinks. The complainant was 7 years old at the time. She did this for a short time because her mother moved to Goulburn with the appellant not long after. Whilst the complainant lived in Kandos, she attended Kandos Public School.

Count 1.

The same thing occurred on two other occasions. The first of these other two occasions happened not long after the incident the subject of Count 1, and the last of the incidents occurred two weeks prior to the complainant's mother going to Goulburn. This evidence was led as relationship evidence. Again, the complainant did not say anything to her mother, nor anyone at school because she "was a kid, I was scared".

When the complainant's mother moved to Goulburn with the appellant, the complainant and her sister M went to live in Kandos with their father, Mr C. They lived with their father for about 4 months until he had a car accident. On the night that Mr C had the accident, the complainant's mother and the appellant came to pick up the complainant and M and took them back to Goulburn. Exhibit B is a record of Mr C’s admission into St Vincent's Hospital after the accident. He was admitted on 27 April 1989 and discharged on 15 May 1989.

When they moved to Goulburn, the complainant lived in Albion Street with her mother, her sister M and the appellant. The complainant had two other siblings; her brother B lived with her father, and her sister T was living with her boyfriend.

The flat in Albion Street had two bedrooms, a bath and a shower, a living area, a kitchen and a laundry. The complainant shared a bedroom with M and the appellant shared a bedroom with the complainant's mother. The complainant did not attend school until about one month after moving to Goulburn. She then attended Goulburn North Public School. Exhibit C indicates that the complainant commenced her attendance at this school on 9 May 1989.

Count

The complainant gave evidence that whilst she was living at Albion Street, the appellant would rub up against her fully clothed when there was no-one else around or no-one was looking. This would occur anywhere in the house. The appellant would rub his penis area against the complainant's side or arm. At the time, the complainant would have been about 120cm tall. The appellant would also grab her between her legs on the vagina. This evidence was led as relationship evidence.

In cross-examination, the complainant stated that while they were living at Albion Street, the appellant worked at The Paragon and would come home from work late at night. Her mother did not work and was home most of the time.

Count

On one occasion while they were living in Albion Street, the complainant was lying in the top bunk in the bedroom she shared with her sister M. She was wearing pyjamas. Her mother was in bed in her bedroom which was separated by the bathroom and a linen cupboard from the complainant's bedroom. M had gone to stay at a friend's house for the weekend. The appellant came into the room, put his hand under the covers and started to touch the complainant. The appellant pushed her underpants to the side and inserted his finger in her vagina. This did not go on for very long. The appellant then left the room.

In re-examination the complainant stated that this incident occurred in summer because her sister had gone away for the weekend to go swimming in the Shoalhaven River. This would have occurred in about February.

Count

On one occasion, the complainant was walking towards the toilet block which was only about 20 feet away from the caravan, when the appellant, who was also heading that way, pulled her around the side of the toilet block and touched her between the legs on her vagina. The complainant was wearing a dress at the time. The appellant then pulled her underpants to the side and placed his finger in her vagina. This did not happen for very long because they were in a public place. Exhibit D is four photographs depicting the shower and toilet block at the caravan park. One of the photographs was marked by the complainant as identifying the area where the appellant assaulted her.

In cross-examination, the complainant stated that she believed that she was wearing a dress at the time, but she was not sure. She stated that her sister M had gone back to live with their father by the time the above incident occurred.

Counts 5

The complainant said that these two incidents occurred while she was attending Cootamundra Public School.

In cross-examination the complainant was not sure whether all three incidents the subject of counts 4, 5 and 6 happened near the toilet block or whether at least one of them happened in the caravan.

Count 7 - Sexual intercourse (child between 10 and 16), between 22.4.91 and 20.5.91, aged 10 - s.66C(2)(a)(b)
The complainant gave evidence that she went to Goulburn with the appellant and they stayed in the Mulwaree Hotel. In cross-examination, the complainant stated that she was not sure if her mother and sister drove them to the Mulwaree Hotel. They stayed in one room. The complainant stated that they stayed there for at least one week (T 66). Exhibit F indicates that G S stayed at the Mulwaree Hotel on 17 and 18 May 1991. Exhibit L indicates that G S stayed for the following periods 4 May to 11 May 1991, 2 April to 20 May 1991, and 26 July to 13 September 1991.

They had gone to Goulburn because there was no work in Cootamundra for the appellant and they were planning to move to Goulburn. In Goulburn, the appellant worked at the Blue and White Cafe. According to the complainant, her mother returned to Cootamundra to pack their belongings. The complainant could not recall going back to Cootamundra after the Mulwaree Hotel. It was pointed out to the complainant that she did not leave Cootamundra Public until September 1991. The complainant agreed that as such, she would have had to return to Cootamundra after the stay at the Mulwaree Hotel. The appellant, however, remained in Goulburn as he had obtained work.

The complainant gave evidence that whilst at the Mulwaree Hotel, the appellant laid her on the bed, took off her pants and placed his penis in her vagina. The appellant pushed his penis in and out of her vagina. The complainant was still wearing her top. The appellant had removed his pants. The complainant started to cry because it was hurting. The complainant said that she did not recall how long this continued, but it felt like a long time. When she started to cry, the appellant got off her, she got dressed and went to the toilet. While she was in the toilet, the complainant saw that she was bleeding from her vagina. She used toilet paper to wipe herself. She then went back into the other room and told the appellant that she would tell her mother about what he had been doing to her. The complainant did not tell her mother because the appellant told her not to. The complainant then went and had a shower.

Count 8

In cross-examination it was pointed out to the complainant that she had made a statement a week prior to her giving evidence on 13 June 2001, and in that statement she stated that the appellant had grabbed her on the vagina through her underpants and that he then pulled her underpants to the side and put his finger in her vagina. The complainant stated that she did not mention this in evidence in chief because she was not asked about it. The complainant then said that while her mum was in the lounge room, all the appellant did was grab her on the vagina, however, when her mother had left the room, he then put his finger in her vagina.

The complainant gave evidence that whilst they were living at Coromandel Street, the appellant would rub his penis area against her arm or leg. This would mainly occur in the lounge room or the kitchen if the complainant's mother was not around.

During the time that M and her partner were staying at the house, the appellant would come into her room while she was in bed and touch her on the vagina. This was led as relationship evidence.

Count 9

One night about three months after T and R's wedding and after they had moved into the Gibson Street house, the appellant went into the complainant's room and told her to get on the floor because the bed was squeaky and the others would have heard. The complainant got on the floor and the appellant pulled her pants down. He unzipped his pants but kept them on. He then placed his penis in her vagina and had sexual intercourse with her. The complainant stated that she did not know how long it took, but it felt like a long time.

Count 10

In cross-examination, the complainant stated that she did not tell her mother about what had been occurring because she was afraid, because the appellant was always around, and also because the appellant had told her that her mother would send her to live with her father.

5 The complainant’s mother and sister each gave evidence. The effect of their evidence was to provide confirmation of some of the details which the complainant had given as to where the family had lived at various times together with other matters of a relatively peripheral nature. There were also in evidence records from the Mulwaree Hotel and from various schools which the complainant had attended. These records had been obtained by police after complaint was made to them on 27 January 1999 by the complainant.

6 The appellant attended Goulburn Police Station on 11 November 2000. He exercised his right to remain silent when spoken to by police. He was then charged. He gave sworn evidence at his trial in which he denied each of the allegations which had been made against him.

7 It is apparent from that recitation of the facts that the complainant delayed making any complaint about these matters until January 1999. In those circumstances it was necessary for the trial judge to give directions in accordance with the principles enunciated by the High Court in Longman v The Queen (1989) 168 CLR 79. Longman has been revisited in recent years by the High Court in Crampton v The Queen (2000) 206 CLR 161 and in Doggett v The Queen (2001) 208 CLR 343.

8 The trial judge gave the following directions in purported compliance with the authorities:

Ladies and gentlemen the first thing is this, the complainant never made any complaint against the accused. You heard the evidence that she never spoke about this until years later, there was no complaint and the Crown concedes, the Crown agrees with Mr Williams that the Crown case here is based solely on the evidence of the complainant, there is no other evidence. For this reason, you must scrutinise her evidence very carefully before you rely upon it. You must check the evidence very carefully.

Ladies and gentlemen there is no evidence from any other witness or from any other source that can support her evidence to say that it is true and I repeat, there is no evidence of complaint from her, there is only her one piece of evidence and nothing else. You ask yourselves, are we satisfied beyond reasonable doubt of her truthfulness and of the accuracy of her evidence. You would scrutinise her evidence with great care before you could rely upon it, you would check her evidence against the other evidence, you would test it. Of course these are the sort of things ladies and gentlemen that you do in the jury room, you examine it. You examine the evidence, you scrutinise it carefully, you go through it, you compare it.

Ladies and gentlemen I must also say this to you, absence of complaint does not indicate necessarily that the allegation that the offence was committed is false and there may be good reasons why a complainant may refrain from making a complaint. You have to balance that against this, that the failure of a complainant to make a complaint has to be taken into account by you when you evaluate the evidence and determine whether you are satisfied that it is truthful.

As absence of complaint might in the circumstances indicate that the allegations are false, what weight you give to the absence of complaint is entirely a matter for you, but as I said ladies and gentlemen, keep in mind the balance, the two sides of that argument and as I said to you before, that is what being a judge is, looking at two sides.

There is no evidence of corroboration in this trial, the evidence has come from only one source, namely from C, there is nothing else. Therefore you have to bear in mind that there may be a danger in acting on her uncorroborated evidence, you would keep that in mind. Before you could convict the accused you must exercise considerable caution and scrutinise the evidence of the complainant very carefully. Ladies and gentlemen it is said that the law is based on good reason, good sense. Those directions of law you might think are based on good reason, good sense.

Ladies and gentlemen another direction I must give you is this and that is that you must pay regard and keep in mind the age of the complainant. Does that raise a doubt in your minds as to her reliability. You heard that the complainant was of a young age. You the jury, you the judges have to decide is her evidence reliable, you take that factor into account. Has there been a distortion of the evidence? Has the complainant changed the evidence? Has the (sic) she distorted it with the passage of time? You ask yourselves those questions and keep that in mind.

Has the accused G S lost a chance of obtaining a fair trial because the allegations were not made sooner

you must examine the evidence very carefully to make sure that the accused has not suffered a disadvantage

you have to ask yourselves this, has the accused been put at a disadvantage because of the delay? That is, is it difficult for him now to prove his innocence.

Here there is no dispute, there was no complaint at the time, there was no complaint until years later. So therefore obviously you might think, it is difficult to test the evidence to determine if it is truthful and accurate.

The delay makes it difficult to obtain a fair trial

Ladies and gentlemen that is all I want to say to you about delay, but except as I said to keep that in mind because in this case there has been evidence of years of delay. (emphasis added)

9 Before turning to the various complaints which are made about the directions, it is useful to make reference to the relevant authorities commencing with Longman itself.

10 In a joint judgment, Brennan, Dawson and Toohey JJ, said:

But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them

hat factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay

and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.

11 Deane J said that:

12 McHugh J said that:

that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay

and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of the alleged offences

13 In Crampton, Gaudron, Gummow and Callinan JJ in a joint judgement, having referred at length to Longman, observed that:

The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant

That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions

Longman

Additionally, this was, in our opinion, a case in which the trial judge should, again with the appropriate adaptation, when summing up, have drawn attention to the additional considerations mentioned by Deane and McHugh JJ in

Longman

.

14 In Doggett, Gaudron and Callinan JJ in a joint judgment, with whom Kirby J agreed in a separate judgment, said that:

Longman

15 Those authorities were the subject of detailed consideration by this Court in R v BWT [2002] 54 NSWLR 241. Relevantly for present purposes, Sully J concluded that the following propositions could be distilled from a review of those decisions:

Doggett v The Queen

Longman

Doggett

Longman

must

Longman

Crampton

Dogget

warnin

commen

caution

Longman

warnin

Longman

Crampton

Doggett

Longman

firs

that because of the passage of time the evidence of the complainant cannot be adequately tested;

secondl

y, that it would be, therefore, dangerous to convict on that evidence alone

thirdl

fourthl

fifthl

sixthl

(c) Not only must the substance of the warning be carefully and correctly focused, but the form of the warning, also, must be carefully and correctly framed.

It must be made clear that the

foundation of that authoritative warning of the court itself is the

accumulated experience of the courts in dealing with cases characterised by substantial delay in the making of complaint about alleged sexual offences. It will be unwise, and more probably than not will be held upon appellate review to have been erroneous, to frame the warning in a way which suggests that what is being said conveys in essence nothing more than the common sense of the jurors would in any event have indicated

Crampto

In framing the substance of a

Longman

direction, a judge must keep in mind not only the guidance given by the joint judgment in

Longman

itself, but also the additional considerations to which reference was made in their respective judgments by Deane J and McHugh J.

16 Wood CJ at CL agreed with Sully J’s summary of the directions that are now required in the light of the decisions of the High Court in Longman, Crampton and Doggett but then added some observations of his own. Having referred in some detail to those authorities, his Honour concluded that:

in fact

R v Roddom

R v GJH

R v Roberts

Put another way, the effect of these decisions has been to give rise to an irrebuttable presumption that the delay

has

prevented the accused from adequately testing and meeting the complainant’s evidence; and that, as a consequence, the jury must be given a warning to that effect irrespective of whether or not the accused was in fact prejudiced in this way.

17 It is to be observed that there were a number of features of the present case which required that there be appropriate compliance with the principles established by the relevant authorities. First, the complainant was only 7 at the time the alleged offences commenced. Secondly, her evidence was uncorroborated. Thirdly, a number of discrepancies emerged in the course of cross-examination between what she had said to the police and what she said in evidence. Finally, there was a considerable delay, on her part, in making complaint.

18 It is apparent, in the light of the authorities to which I have referred, that there are a number of difficulties with the directions that were provided to the jury. At the outset of the directions the trial judge told the jury that they were “required to ask [themselves] this, has the accused G.S. lost a chance of obtaining a fair trial” by reason of the delay in complaint. The problem with posing that question was twofold. First, it was not the question with which the jury was ultimately concerned. The issue to which their attention should have been directed in the present context, was that as the appellant had been disadvantaged in making his defence to the charge by reason of the delay, they were accordingly and consistently with the onus of proof, to consider the matter of delay in deciding whether or not to accept the complainant’s evidence. The question which was posed thus raised a false issue for the jury’s consideration and as such was likely to have distracted their attention away from the real issues that they were to determine. It also raised the bar too high in the sense that a failure to have a fair trial is a more stringent test than was required. Secondly, by posing the question as a warning, it gave rise to the possibility which was heightened by the introduction of the fair trial criterion, of a response that was in the negative. If the jury did in fact arrive at the conclusion that the appellant had not lost the chance of obtaining a fair trial, or putting it another way, had had a fair trial, then they may as a result have been more readily prepared to accept the complainant’s evidence and thus convict. At the very least, a negative response to the question would in all likelihood have led the jury to put to one side any further consideration of the issues concerning the delay in complaint as bearing upon the credibility of the complainant’s evidence as well as the directions which they received in relation to that question.

19 The trial judge then went on to direct the jury “to examine the evidence very carefully to make sure that the accused has not suffered a disadvantage.” His Honour then said “You have to ask yourselves this, has the accused been put at a disadvantage because of the delay? That is, is it difficult for him now to prove his innocence.”

20 Those directions had the effect of compounding the difficulties to which I earlier referred. In the first place the trial judge raised a further erroneous matter for the jury’s consideration when he asked the question “is it difficult for him now to prove his innocence?” I would not, in light of the other directions which his Honour gave during the course of the summing-up about the onus and standard of proof, be disposed to accept the submission that his Honour thereby effectively reversed the onus of proof upon the ultimate issue for the jury’s consideration. The question which was posed could nevertheless have diluted those general directions and at least was apt to confuse and mislead the jury. In any event the remarks currently under consideration were likely to erode the overall effect of the directions which were required upon the issue of delay in making complaint.

21 There is however a further problem with this part of the direction. As Wood CJ at CL observed in BWT, the authorities make it clear that there is “an irrebuttable presumption that the delay in complaint has prevented the accused person from adequately meeting and testing the complainant’s evidence.” Accordingly, the jury should have been so instructed rather than directed to consider whether there was any such disadvantage.

22 The trial judge then went on to say that “delay makes it difficult to obtain a fair trial”. It will be observed that his Honour in so directing the jury repeated the inappropriate reference to the fair trial criterion to which I have already made reference. But more importantly, in the present context, his Honour did not fully explain what those difficulties were. True it is that the trial judge told the jury that a delay in making complaint can make it difficult to cross-examine a witness because “it is difficult to recall details of an incident where…a lengthy period of time [has passed].” What was required in the present case however was further elucidation of the matters to which reference was made in Longman and Crampton concerning the forensic disadvantages which confront an accused person in circumstances such as the present.

23 As the joint judgment in Longman makes clear, these are not matters which would necessarily be apparent to a jury. The jury needed to be instructed that the appellant had lost those means, by reason of the delay, of “testing the complainant’s allegations which would have been open to him” had there been no such delay. Moreover had there been no delay in making the allegations “it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant’s story or confirming the denial.”

24 In the joint judgment in Crampton, their Honours said that “the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions.” It was the disadvantage which was occasioned to the appellant by reason of the denial of those “forensic weapons” that required attention from the trial judge. The jury did not receive the benefit of directions to that effect. A critical forensic consideration in cases such as the present is the capacity of an accused person to be in a position to effectively cross-examine the complainant. The point was succinctly put, if I may respectfully say so, by Kirby J in R v WRC [2002] NSWCCA 210. His Honour said:

State v Saporen

The chief merit of cross-examination is not that at some future time it gives the party opponent the right to dissect adverse testimony. Its principal virtue is the immediate application of the testing process. Its strokes fall while the iron is hot. False testimony is apt to harden and become unyielding to the blows of truth in proportion as the witness has opportunity for reconsideration and influence by the suggestions of others. …

The method of cross examination is an attack upon detail, exposing contradictions and unreliability. If the trial is undertaken within a reasonable time, the excuse for unreliability of fading memory is unlikely to be persuasive. However, where the trial is delayed, the accused is disadvantaged in two ways. First, the testimony is likely to be more vague, bereft of the detail which may be used to expose unreliability. Secondly, that absence of detail, and any contradiction that may happen to emerge, can the more easily be explained by reference to the passage of time. The jury therefore is more likely to be forgiving of shortcomings in the complainant’s evidence, especially in the context of charges which arouse strong feelings of prejudice or revulsion (cf Kirby J Doggett (supra) at 25, para 118. (at para 142-3)

25 Although the trial judge did make reference to the complainant’s age the jury should also have had their attention drawn to the matters to which Deane J and McHugh J referred in their respective judgments in Longman concerning the impact of delay upon the recollection of a person of her tender years.

26 The appellant submits that there were instances thrown up by the evidence which demonstrated the type of forensic disadvantage from which he was suffering. In this respect he points to the evidence of Mr Prevedello. He was the owner of the Mulwaree Hotel which is where the complainant maintained that the incident, which gave rise to count 7 in the indictment, occurred. An issue arose in the trial which it is unnecessary, for present purposes, to explore in any detail. Suffice it to say that Mr Prevedello produced records concerning periods during which the appellant had stayed there. There was some ambiguity about various of the entries in the register. When Mr Prevedello was asked to explain the entries in the register, he responded on several occasions with answers such as “I mean we are talking ten years ago and I can’t recall that far back.”

27 The appellant also points to the fact that amendments were made to various of the counts in the indictment concerning the periods during which particular offences were said to have occurred. The Crown sought and obtained leave to do so because records came to light during the course of the trial which made it apparent that the periods originally nominated were inaccurate. It was accordingly submitted that this matter could and should have been referred to by the trial judge because it too provided a practical illustration of the sort of forensic disadvantage under which the appellant was labouring. In my view, there is some substance in the submission although the fact that the trial judge did not so inform the jury, would not, of itself, have constituted error.

28 Although in some respects there was compliance with the principles enunciated in Longman, I have come to the view that as the directions represented a significant departure from what is required by Longman (and the subsequent authorities to which I have referred) that leave should be granted pursuant to rule 4 of the Criminal Appeal Rules to argue this Ground, notwithstanding the fact that no complaint about them was raised at trial. Furthermore I am of the view that this Ground of Appeal must be upheld.

29 As frequently occurs in matters of this kind, the Crown led evidence of other sexual activities alleged to have been committed by the appellant upon the complainant which were not the subject of counts in the indictment. That evidence was led without objection.

30 After the first occasion on which evidence of this kind was led, the trial judge raised with counsel the fact that the jury had before it evidence of “uncharged acts.” His Honour then provided counsel appearing for the appellant at trial with a choice as to whether he wanted the Crown or the judge himself to explain the purpose for which that evidence was being led. Counsel indicated that he wished the Crown to provide the explanation. The Crown proceeded to do so and informed the jury that the evidence was being led in order to put the relationship between the appellant and the complainant into context. The Crown also foreshadowed that there would be further evidence led from the complainant that was in a similar vein.

31 At an early stage of the summing-up the trial judge reminded the jury of the limited use that it could make of that evidence. His Honour then went on to warn the jury that it could not adopt a form of propensity reasoning in relation to the evidence.

32 The appellant now complains that the trial judge should have given the warning at the time at which the initial evidence was given. In support of the submission, the appellant relies upon this Court’s decision in R v Beserick [1993] 30 NSWLR 510 in which Hunt CJ at CL, with whom Finlay and Levine JJ agreed, said that:

either

or

33 What his Honour was purporting to do in that passage, as I understand it, was to suggest a practice which should, in the ordinary course of events, be followed. It may be accepted that there are good reasons why it ought to be. I do not however understand his Honour to be suggesting that a trial will, merely by reason of a failure to follow that practice, inevitably miscarry.

34 I am not persuaded, in the circumstances, that there has been a miscarriage of justice especially as the trial was of short duration. I am fortified in arriving at that conclusion by the fact that trial counsel saw no reason to request such a warning at the time at which the evidence was led even though it is apparent that there was every opportunity for such a request to be then made.

35 I am further fortified in my view by this Court’s decision in R v TAB [2002] NSWCCA 274 in which a ground in almost identical terms was advanced. The trial judge in that case recognised that he should have given a warning at the time at which the evidence had been admitted, but through oversight, had omitted to do so. Levine J (with whom Mason P and Sully J agreed) held that there had been no miscarriage of justice. His Honour concluded that:

the evidence…was very briefly and simply given and in the end subject to their correctness, the directions at the end of the trial would otherwise be sufficient” (at para 35).

36 It is also submitted that the directions which were ultimately given were deficient. The first complaint in this respect is that the trial judge confined the directions to the two incidents of relationship evidence that had been introduced in respect of count 1 whereas the relationship evidence went further than that. It is true that the directions were given in respect of the relationship evidence that was led at the same time as the evidence in respect of count 1. Nevertheless I have no hesitation in accepting the proposition that the jury would have well understood that the directions, given the context in which they were provided, were intended to be of general application rather than being confined to the part of the evidence that was specifically identified. If it had been thought at the time that some correction was required by the trial judge, it would have been a simple enough matter for counsel to have raised.

37 It is also submitted that the direction was deficient insofar as it did not include a warning, as Beserick requires, that the jury must not “substitute evidence of other sexual activity for the specific activity which is the subject of the offence charged.”

38 It may be that trial counsel saw no necessity for the direction to be expanded in the way which is now suggested since, as the Crown submitted, the jury was unlikely to have contemplated substituting the evidence of “other sexual activity for the specific activity charged” because the relationship evidence was, for the most part, relevantly different from the evidence which was the subject of the specific count in the indictment. Whether that assumption is correct or not, in my view the appellant has not demonstrated that there has been a miscarriage of justice. I referred earlier to the fact that no objection was taken by trial counsel to the directions which are now impugned. In those circumstances leave to argue this ground is required under rule 4 of the Criminal Appeal Rules. I would refuse leave in respect of this Ground.

39 After the jury retired to consider its verdict, it requested a copy of the complainant’s statement to police and the “court transcripts” in respect of counts five, six and eight. It is clear that the statements were not in evidence and that there was no transcript available (or likely to be available in the foreseeable future). The proceedings were conducted in the country and had been sound recorded. The possibility of making the tape recording of the complainant’s evidence available to the jury was considered but was not seen, in the circumstances, as being practicable. The trial judge explained to the jury that they were not entitled to have the complainant’s statement to police because it was not part of the evidence in the trial. It is common ground that the jury’s request arose because there had been cross-examination of the complainant which was designed to demonstrate that there were, in certain respects, inconsistencies between what she had told the police in her statement and the evidence which she gave in court. Unsurprisingly counsel had sought, in his address, to highlight those matters. Moreover the trial judge had told the jury what use could be made of prior inconsistent statements.

40 When dealing with the jury’s request, his Honour ascertained from the jury’s reaction to an inquiry which he made of them, that they did in fact wish to compare the statement with the evidence which had been elicited. It may be noted that it is not uncommon for a jury to make a request for the statement of a witness. See R v TAB [2002] NSWCCA 274 at para 68.

41 It is now submitted that the jury’s “request for assistance was rejected”. The appellant further submits that the “trial judge ought have dealt with the request in a manner which provided the desired information. It is submitted that the failure to do so unfairly disadvantaged the defence case”.

42 The short answer to the submission is that the jury was not entitled to obtain “the desired information” or at least that part of it which related to material that was not in evidence. Without that material, the exercise, upon which it was understood by everyone at the trial that the jury wished to embark, was simply not possible. In those circumstances it may readily be inferred that the jury, and everyone else, realised that no further assistance could be provided to them.

43 It is true that the jury could have been reminded of the relevant parts of the complainant’s evidence. However the jury did not request that this be done. Nor did counsel who appeared for the appellant at trial suggest or request that such a course should be adopted. It seems tolerably clear that the reason why such a request was not made is that the jury was only interested in making the comparison to which I earlier referred. The only reasonable interpretation left open, in the circumstances, is that once the jury was informed that it was not possible for them to engage in that exercise, they were prepared to continue their deliberations without that material. In all those circumstances it cannot be reasonably maintained that the jury’s “request for assistance was rejected”.

44 In my view the appellant has, in any event, failed to demonstrate that he was, in the circumstances, “unfairly disadvantaged”. I would reject this Ground of Appeal.

45 It was argued that in the event that the court upheld the challenge to the convictions, it was appropriate to enter verdicts of acquittal rather than make an order for a retrial. The appellant pointed to the following factors as bearing upon that issue:

(a) he is now aged 66;

(b) he is in poor health; and

46 Relevant and significant as those considerations may be, I am not however persuaded that they are of such a nature as to require the court to make the order sought in the present case. Indeed they are the very sort of matters which fall peculiarly within the province of the Director of Public Prosecutions to determine.

47 I propose the following orders:

1 Appeal against convictions allowed.

2 Convictions and sentences quashed.

48 SMART AJ: I have had the benefit of reading in draft the judgment of Buddin J. I agree with the orders which he proposes and the reasons which he gives for holding that the judge’s directions were defective. I wish to add some further comments.

49 In Reg v. Lawrence [1982] AC 510 at 517 Lord Hailsham LC said:

“Where there is delay the whole quality of justice deteriorates. Our system depends on the recollection of witnesses, conveyed to a jury by oral testimony. As the months pass, this recollection necessarily dims…”

50 In that case their Lordships were lamenting a delay of 11 months between the commission of the offence on 13 April 1979 and 13 March 1980 when the trial commenced. It was a prosecution for reckless driving causing death.

51 In Brisbane South Regional Health Authority v. Taylor (1996-1997) 186 CLR 541, a case in which an extension of the limitation period was sought, McHugh J at 551, after referring to Lord Hailsham’s speech in Lawrence, said:

“Sometimes the deterioration [in the quality of justice] is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v. Wingo (1972) 407 US 514 at 532 ‘what has been forgotten can rarely be shown’. So it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed”.

52 I would add a reference to the decision of Kirby J in R v. WRC [2002] NSWCCA 210 to which Buddin J has drawn attention, namely, that delay robs cross-examination of much of its potency.

53 Longman v. The Queen (1989) 168 CLR 79 recognised the problems arising from delay which may not be fully appreciated by a jury. There is the temptation, even on the part of lawyers, to imagine that it will be possible to point to all the prejudicial effects of delay and that a matter can be decided fairly on existing information.

54 In Longman the joint judgment of Brennan, Dawson and Toohey JJ referred to the inability to adequately test the evidence of the complainant after a long delay as being the occasion for the warning there stated. The joint judgment having stated the principle, it would need to be explained to the jury what was meant. Simply stating that after 20 years the complainant’s story could not be adequately tested may not mean a great deal to a jury. The joint judgment explained what it meant by the loss of adequate testing, that is, had the complaint been made shortly after the alleged event it would have been possible to explore in detail the circumstances surrounding the alleged event and perhaps adduce evidence throwing doubt upon the complainant’s story or confirming the appellant’s story. After a lengthy lapse of time it is difficult to mount an attack upon the details of the alleged event exposing contradictions and unreliability – the evidence is likely to be more vague and bereft of the detail which may be used to expose unreliability. The complainant can also rely upon the passage of time to explain the absence of detail and any contradictions.

55 In Crampton v. The Queen (2000) 206 CLR 161 at par [45] in the joint judgment of Gaudron, Gummow and Callinan JJ it is stated:

“The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant”.

56 This represents a refinement of the instruction required and brings that instruction into line with the discussion in Longman. Just as the judge needed to add a word of explanation as to what was involved in testing evidence he would need to explain that meeting the evidence of the complainant includes tendering documents, calling witnesses and evidence, for example, if it be the case, that the accused was elsewhere at the time of the alleged incident or in the company of other persons. Of course, if the intercourse is admitted and the issue is consent or knowing that the complainant was not consenting the evidence required to meet the case of the complainant will be of a different order. In such a case surrounding circumstances and matters of detail are likely to be important.

57 In Crampton at para [126] Kirby J said:

“The specific difficulties that an accused will have, in circumstances of significant delay, in defending himself or herself in a criminal trial, include securing evidence (comprising now scientific as well as lay evidence) and gathering information promptly with which to test and challenge the evidence of the accuser”.

58 In Doggett v. The Queen (2001) 208 CLR 343 a majority of the High Court (Gaudron and Callinan JJ in a joint judgment and Kirby J in a separate judgment) again stressed the importance of a strong direction being given to the jury on the question of delay. The passage from the joint judgment in Crampton set out in the reasons of Buddin J was quoted. Gaudron, Callinan and Kirby JJ underlined the importance of the denial by effluxion of time to an accused of the forensic weapons that a timely complaint might allow.

59 In Doggett, the majority took the view that the corroborative evidence there led, did not dispense with the need for a Longman direction. On one view the corroborative evidence was capable of being regarded as strong but on another view it may not have been regarded as so telling. In the light of the High Court’s approach in Doggett there are likely to be few cases where the corroborative evidence will be such as to warrant dispensing with a Longman direction. This remark applies even more strongly where the corroborative evidence is challenged.

60 I have not touched upon the additional matters referred to by Deane J and McHugh J in Longman. Where appropriate they should be included in the warning.

61 The issue of delay is a troublesome one. Where there is delay “the whole quality of justice deteriorates”. Delay robs cross examination of much of its potency as the ability to examine the details and challenge reliability is much reduced. With delay, what has been forgotten and evidence which has disappeared or is no longer available may never be known. In many cases it is impossible to accurately assess the effect which delay has had. Delay will almost always have some effect on the quality of the evidence and consequently on the quality of justice. The difficulty lies in assessing the degree of that effect given the factors to which reference has been made. That effect (and perhaps lack of effect) is virtually incapable of proof.

62 As I understand the combined effect of the decisions of the High Court in Longman, Crampton and Doggett they start from the premise, which I would not wish to dispute, that significant delay must have some effect on the quality of the evidence able to be adduced and the quality of justice. They then highlight the difficulties which exist in both testing the evidence led by the Crown and in the accused meeting that evidence. They regard it as plain that the accused has been disadvantaged by the delay. I would not wish to query that view. They then hold that a warning must be given. In my opinion, as significant delay must have some effect and it is virtually impossible to assess that effect with any degree of accuracy particularly because of what is not or may not be known, the need for a warning along the lines specified is heightened.

63 It does not follow that because of the warning the jury will not convict. The effect of the warning is to alert the jury to matters of which they may not have been aware and make them very careful, thorough and cautious in their examination and assessment of the evidence.

*********

Last Modified: 04/14/2003

Actions

Download as PDF Download as Word Document

Citations

R v GS [2003] NSWCCA 73

Most Recent Citation

Director-General, Department of Environment Climate Change and Water v Walker Corporation Pty Ltd [2011] NSWLEC 27

Cases Citing This Decision

9

TJ v The Queen [2009] NSWCCA 257

Darren Peter Wade v Regina [2006] NSWCCA 295

Sheehan v Regina [2006] NSWCCA 233

Cases Cited

8

Statutory Material Cited

1

Guest v The Nominal Defendant [2006] NSWCA 77

Ryan v The Queen [2000] HCA 60

Doggett v the Queen [2001] HCA 46

CITATION:	Regina v GS [2003] NSWCCA 73 revised - 10/04/2003
HEARING DATE(S):	19 March 2003
JUDGMENT DATE:	3 April 2003
JUDGMENT OF:	Santow JA at 1; Buddin J at 2; Smart AJ at 48
DECISION:	Appeal against convictions allowed. Convictions and sentences quashed. That there be a new trial in relation to all counts.
CATCHWORDS:	Sexual offences - delay in complaint - sufficiency of "Longman" directions - use of evidence of "uncharged acts".
LEGISLATION CITED:	Criminal Appeal Rules
CASES CITED:	Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541 Crampton v The Queen (2000) 206 CLR 161 Doggett v The Queen (2001) 208 CLR 343 Longman v The Queen (1989) 168 CLR 79 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
PARTIES :	Regina GS
FILE NUMBER(S):	CCA 60165/02
COUNSEL:	R Hulme SC (Crown) P Winch (Appellant)
SOLICITORS:	SE O'Connor (Crown) DJ Humphreys (Appellant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/41/0028
LOWER COURT JUDICIAL OFFICER :	Coorey DCJ