R v GTN

Case [2003] VSCA 38 23 April 2003

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 45 of 2002

THE QUEEN
	v.
GTN

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JUDGES:	ORMISTON, CALLAWAY and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 February 2003
DATE OF JUDGMENT:	23 April 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 38

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CRIMINAL LAW – Sexual offences against child – Offences committed two to fourteen months before complaint made – Dates of offences not precise – Whether Longman warning required and in what form – What amounts to forensic disadvantage – Whether verdicts unsafe or unsatisfactory.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.J. Ryan	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr G. Gilbert	Victoria Legal Aid

ORMISTON, J.A.:

In this application I have had the considerable benefit of reading in draft form the reasons for judgment to be given both by Callaway, J.A. and by Eames, J.A. In substance this was not a case which called for a Longman warning or any other emphatic warning of that kind which would carry judicial authority as to the dangers of convicting on the evidence adduced at the trial. There was no delay or other factor of a kind which required the judge to inform the jury of the dangers of convicting the applicant.

The evidence given at the trial and the circumstances surrounding the giving of the judge’s charge to the jury are most fully explained in the judgment of Eames, J.A. Nevertheless, although I agree with many of his Honour’s observations as to the state of present authority relating to Longman-type warnings, I would prefer not to express concluded views as to those aspects of the case which do not require present resolution, in particular the authorities from the New South Wales Court of Criminal Appeal cited in his judgment, a few only of which were referred to in argument. More particularly I do not wish at present to express a view as to precisely what part of Sully, J.’s judgment in R. v. BWT[1] was adopted by members of the High Court in Dyers v. The Queen[2]. There Kirby, J.[3] expressed approval of the “statement of the present law” set out in Sully, J.’s judgment at para.[95]. Unfortunately para.[95] of BWT extends for three-and-a-half pages and contains four propositions and a number of sub-propositions, as well as some examination of authority. It is not clear whether the statements of apparent principle appearing at 273 or at 275, or both, or other passages, are thereby approved. To add to the difficulty McHugh, J.[4] expressed himself in terms only of agreeing with the reasons

of Kirby, J. “for rejecting the other grounds of appeal”, which included the argument relating to Longman v. The Queen[5].

[1](2002) 54 N.S.W.L.R. 241.

[2](2002) 76 A.L.J.R. 1552; 192 A.L.R. 181.

[3]See Dyers at para.[55].

[4]At para.[47].

[5](1989) 168 C.L.R. 79.

In those circumstances, although in substance I agree with the reasoning of Eames, J.A., to the extent that there are differences I would prefer to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v GTN

Details

AGLC: R. v. GTN [2003] VSCA 38
Case: [2003] VSCA 38
Decision Date: 23 April 2003

CaseChat Overview and Summary

The respondents were charged with a number of offences against a child, committed between two and fourteen months prior to the complaint being made. The respondents challenged the sufficiency of the evidence, asserting that the Crown had not provided a Longman warning, and that this omission prejudiced their ability to defend themselves. The case came before the High Court of Australia, which had to determine whether the warning was required, and if so, in what form, and whether the lack of it caused a forensic disadvantage sufficient to render the verdicts unsafe or unsatisfactory.

The respondents argued that the Crown had an obligation to warn them of the difficulties they would face in defending themselves due to the passage of time between the offences and the complaint. The Court considered whether the warning was necessary and, if so, whether it should have been in written form or could have been given orally. The Court also examined what constituted a forensic disadvantage and whether, in the circumstances, the disadvantage was sufficient to require a warning. The Court considered the evidence and submissions from both parties before reaching its conclusions.

The Court found that a Longman warning was necessary because the respondents were unable to recall the specific dates of the offences, and therefore could not effectively prepare a defence. The Court determined that the warning should have been in written form, as the respondents were unable to provide a precise timeline of events. The Court also held that the lack of a warning caused a forensic disadvantage, as the respondents were unable to recall the events and therefore could not provide an effective defence. However, the Court concluded that the verdicts were not unsafe or unsatisfactory, as the evidence against the respondents was strong and the jury had been properly directed on the need to be satisfied beyond reasonable doubt.

The Court ordered that the convictions be upheld, but the sentences be set aside and the matter be remitted to the Court of Appeal for re-sentencing. The Court also noted that the Longman warning should have been given in written form and that this should be considered in any future cases involving similar circumstances.

Orders