R v Heuston

[2003] NSWCCA 172

Reported Decision: 140 A Crim R 422

New South Wales

Court of Criminal Appeal

CITATION:	R v. HEUSTON [2003] NSWCCA 172
HEARING DATE(S):	16 June 2003
JUDGMENT DATE:	30 June 2003
JUDGMENT OF:	Hodgson JA at 1; Simpson J at 61; Greg James J at 62
DECISION:	1.Appeal allowed. 2. Convictions quashed. 3. New trial ordered. 4. Sentences imposed on 7 June 1996 backdated so as to have commenced on 9 March 1993.
CATCHWORDS:	CRIMINAL LAW - Review of conviction - Reference by Attorney-General - Dealt with as appeal - Fresh evidence - Evidence from Police Royal Commission and Police Integrity Commission - Delay in complaint - Longman direction - Whether verdict of acquittal or new trial.
LEGISLATION CITED:	Costs in Criminal Cases Act 1997 Crimes Act 1900 ss.474C, 474D, 474L
CASES CITED:	Jones v. The Queen (1997) 191 CLR 439 Longman v. The Queen (1989) 168 CLR 79 R v. BWT (2002) 54 NSWLR 241 R v. Gregory [2002] NSWCCA 199 R v. Heuston, Court of Criminal appeal, 20/6/95 R v. Jovanovic (1997) 42 NSWLR 520 R v. Uhrig NSWCCA 24/10/96 WRC (2002) ACrimR 89
PARTIES :	Regina - respondent Neil Heuston - appellant
FILE NUMBER(S):	CCA 60018/03
COUNSEL:	Mr. T. Game WC with Ms. R. Burgess for appellant Mr. D. Howard for respondent Crown
SOLICITORS:	D.J. Humphries for appellant S.E. O'Connor for respondent Crown

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC93/51/0177
LOWER COURT JUDICIAL OFFICER :	Kinchington DCJ

CCA 60018/03
DC 93/51/0177

HODGSON JA
SIMPSON J
GREG JAMES J

Monday 30 June 2003

R v. Neil HEUSTON

Judgment

1 HODGSON JA: On 18 April 1994, in the District Court at Coffs Harbour, the appellant was found guilty by a jury of two offences alleged to have been committed at Bowraville near Coffs Harbour on 15 September 1992, namely:

(1) being armed with an offensive weapon, namely a firearm, robbing Stephen Randall Mulholland and Deborah Yvonne Mulholland of a sum of money, a quantity of cannabis leaf and a number of firearms; and
(2) having sexual intercourse with Deborah Yvonne Mulholland without her consent and knowing that she was not consenting.

2 He was sentenced to a substantial term of imprisonment, which was subsequently reduced on appeal to a total of 13 years imprisonment from 9 March 1993, with a minimum term expiring on 8 March 2003.

3 The appellant also appealed against conviction, and this appeal was dismissed by the Court of Criminal Appeal on 20 June 1995.

4 On 9 June 1997, the appellant made an application under s.474D of the Crimes Act 1900, seeking a review of this conviction. This application was dismissed by Barr J on 29 August 2000.

5 On 12 June 2002, the appellant made an application to the Governor under s.474B of the Crimes Act, seeking a further review of his conviction. On 28 January 2003, the Attorney-General referred the case to the Court of Criminal Appeal pursuant to s.474C(1)(b) of the Crimes Act; and this is the matter I am now dealing with. Section 474L of the Crimes Act requires the Court to deal with this reference as if it were an appeal against conviction by the convicted person.

CROWN CASE AT THE TRIAL

6 The Crown case was that, on 15 September 1992, at around 9pm, Mr. and Mrs. Mulholland were victims of a home invasion committed by four men, during which time Mrs. Mulholland was also sexually assaulted.

7 At the trial, Mr. Mulholland gave evidence that four men entered his property via the kitchen, wearing balaclavas and holding firearms. They hurried into the lounge room. One of the men was holding a .357 Magnum revolver. Another man, on the Crown case, the appellant, looked familiar to Mr. Mulholland, who saw his skin through open stitching in the balaclava. His hair was receding and pulled back in a ponytail, and his teeth were broken with gaps. He was holding a .32 calibre pistol in his right hand, and .303 calibre rifle in his right hand. He was slouching and he walked in a loping style.

8 The men demanded money and drugs, and Mr. Mulholland was taken into the bedroom while it was searched, and he was later taken outside where he was forced to dig up a number of barrels. He was subsequently tied up in the lounge room, and asked about the whereabouts of his rifles.

9 Mr. Mulholland’s evidence was that he heard sounds from the bedroom suggestive of a sexual assault. Two men were keeping watch over Mr. Mulholland, demanding money and holding shotguns to his head. At one point, one of the men came out from the bedroom and slapped him in the face, saying “That’s for fucking a brother”. The man’s face was close up to him and Mr. Mulholland noticed six to eight weeks’ of growth on the man’s face, and that he had missing teeth. Mr. Mulholland’s evidence was that he recognised this man as the appellant. The fourth man then came out of the bedroom, and Mr. Mulholland was threatened. Threats were also made in respect of his children. Subsequently, the four men left the house. Throughout the incident, Mr. Mulholland had been physically assaulted and threatened, and several thousand dollars were taken as well as quantities of cannabis and four rifles: a single barrelled Boito shotgun, and single shot .22 calibre rifle, a ten shot .22 calibre rifle, and a ten shot pump action rifle.

10 Mr. Mulholland gave evidence that he had met the appellant once before, in early 1991. The appellant came to his property with another man, and they stayed for over an hour. The appellant had spoken to Mrs. Mulholland, who had been in the kitchen, and said something like “G’day darlin’, how you goin’ darlin’”. The appellant then had shoulder-length hair, which was receding, bad teeth, a slight pot belly and he walked with a slouch.

11 In cross-examination, Mr. Mulholland agreed he had made three statements to police: on 27 January 1993, and subsequently in February and April 1993. The first statement was deficient in detail and contained errors, mainly because he felt pressure: he said he had dropped off his children to school that morning and needed to pick them up that afternoon. He agreed that over time the level of detail in the statement increased. He also agreed that in taxation proceedings taken against him, he would have lied about money earned by him from his drug crops.

12 Mrs. Mulholland gave evidence that she had been in bed when she heard a scream, and she saw men in dark clothing and rifles inside the house. One of them came into the bedroom and told her “Shut up, darlin’, I’m not going to hurt you darlin’, everything’s going to be alright”. She heard the other men talking about drugs and money, and asking her husband where he kept the rifles. Her bedroom was searched, and one of the men went through her drawers and said “Why don’t you put these pretty things on”. This man had a ponytail. Mrs. Mulholland’s feet were tied with packaging tape, and her nightie was ripped off, and she was told to open her legs. At some point, one of the men forced her legs apart and put his gloved fingers in her vagina. Later, Mrs. Mulholland overheard the men make threats about her children, and she heard the man who sexually assaulted her hit her husband and say “That’s for fucking a brother”.

13 Mrs. Mulholland’s evidence was that, when the man in her bedroom had spoken to her, she recognised the voice, but at the time could not put a name to the voice. However, after the men had left, her husband said “It was the Heustons”, and Mrs. Mulholland immediately knew the man had been the appellant. She had previously met the appellant in the circumstances described by Mr. Mulholland in his evidence. She remembered his voice because the manner in which he spoke to her when she first met him was offensive to her.

14 Although both the Mulhollands received injuries, and although Mrs. Mulholland had to have a broken tooth attended to professionally, they did not report the matter to the police immediately, because of the threats that had been made to them. A week or so after the event, they did attend the rooms of a consulting psychologist, Mr. McCombie, and told him they had been robbed and that Mrs. Mulholland had been sexually assaulted, and they mentioned the Heustons. Later on, Mr. Mulholland realised that the police suspected him of cultivating and supplying drugs, and on 27 January 1993 he went to the police station, reported the attack and set about negotiating an indemnity from prosecution from drug offences in return for giving evidence against the appellant and the other two Heustons, whom he named as three of the attackers. He identified the appellant as one of the men who sexually assaulted Mrs. Mulholland.

15 A number of police officers gave evidence for the Crown, namely Detective Sergeant Stuart Ware, Detective Senior Constable David Minehan, Detective Senior Constable Michael Fabris, and Senior Sergeant Gordon Smith.

16 Sergeant Ware’s evidence was that he was present during a search of the property of the appellant’s brother (Eric Heuston) on 9 March 1993, where two barrels were removed from underneath thick grass. They contained a .357 Magnum replica revolver and six replica bullets in the chamber, and a box of 50 .32 calibre pistol cartridges and four balaclavas. The Magnum replica revolver was a silver revolver, which accorded with the description that had been given by Mr. Mulholland in his first statement on 27 January 1993. It contained some markings, which accorded with a more detailed description given by Mr. Mulholland in one of his later statements.

17 Senior Constable Minehan and Senior Constable Fabris gave evidence of conversations with the appellant on 9 March 1993, of which Minehan had taken notes in his notebook. Both of them attended the appellant’s house to execute a search warrant and Fabris cautioned him and asked if he would accompany them to his brother’s house, which he did. When they arrived, Fabris asked the appellant if he knew anything about the two kegs found in the yard, one of which had a silver Magnum pistol. The appellant said he did not know anything about them. The appellant was led to the area where the barrels were located. Fabris said that the kegs were found among the reeds and “You’re here most days, you would have seen the kegs”, to which the appellant replied “Yeah”. The appellant was asked what else had been in the barrel, and he replied “The silver replica pistol, the .32 pistol and the rifle which was shortened and came apart”. The .32 pistol and the rifle were not in the barrel, the appellant was asked if he knew where they were, to which the appellant said “I don’t know. Eric must have moved them”.

18 Fabris then brought up, for the first time, the home invasion and cautioned the appellant. The appellant was escorted to Kempsey Police Station where he refused to be electronically interviewed. Fabris told the appellant that Minehan would, in that case, continue to record their conversation in his police notebook. Fabris put the circumstance of the home invasion to the appellant who said “I just wasn’t there”. When asked if he knew Stephen Mulholland, the appellant said “No I’ve never met him”; and the same went for Deborah Mulholland. When asked where he had been on 15 September 1992, the appellant said “I really don’t know”. Minehan read the notebook entries to the appellant, who then signed it.

19 Fabris left the interview room to bring in an independent officer (Senior Sergeant Gordon Smith) who spoke to the appellant and verified the veracity of the interview. Afterwards Fabris asked the appellant a further question “Who owned the two barrels which were found at Eric’s property which had the guns in them”, and the appellant replied “We all do”.

THE DEFENCE CASE AT THE TRIAL

20 The appellant made an unsworn statement to the jury in which he said that he was not present at the home of Mr. and Mrs. Mulholland on the night of 15 September 1992, and that he had been in a darts competition. He had in fact never met these people and had never been to their property. He said that he had never had a pot belly nor a ponytail, and he had his front teeth removed on 19 June 1992. He had never used the expression “darling” towards women. He said that Fabris belted him when he denied being involved in the home invasion, and that he did not mention any guns to the police. He said that at the police station, he asked if the interview could be videotaped, and was told the machine was broken. The appellant saw Minehan writing in his notebook, and Fabris kept hitting the appellant until he would sign it, which he did because he was scared and he had had enough after five hours. He did not read the notebook before signing it. He had not complained to the independent officer because he simply did not believe he was truly independent of the others.

21 A number of the appellant’s acquaintances, and the appellant’s wife, gave evidence that the appellant was seen at the Macleay River Hotel on the night of 15 September 1992, although he did not appear to have been in the darts competition on that night. The appellant was not always clean-shaven. Sometimes he had a couple of days’ growth on his face, but not six to eight weeks. He had not been seen with hair down to his collar, in a ponytail, nor with a beer gut. There was nothing unusual about the way the appellant walked. He was not heard to use the word “darling”, although one acquaintance had heard him use that word occasionally.

APPEAL

22 After the appellant had been convicted on 18 April 1994, he appealed against his conviction to the Court of Criminal Appeal, relying on four matters. First, it was contended that the trial judge was in error in leaving to the jury the evidence of Mrs. Mulholland as the identification of the appellant as the person who sexually assaulted her. Second, it was contended that the trial judge’s directions on the question of identification were inadequate. Third, it was contended that the judge should have warned the jury of the dangers of finding the appellant guilty on the basis of police evidence that he made admissions in police custody, where these were disputed and there was no independent corroboration. Finally, it was contended that the conviction was unsafe and satisfactory. As I have mentioned, that appeal was dismissed: R v. Heuston, Court of Criminal Appeal, 20/6/95 unreported.

23 The appellant also sought leave to appeal against his sentence, and that leave was granted and the appeal against sentence was allowed on 28 November 1995. The substituted sentence was one of four years fixed on count 2, from 9 March 1993 to 8 March 1997; and on count 1, a minimum sentence of six years from 9 March 1997 to 8 March 2003, and an additional term of three years from 9 March 2003.

24 On 7 June 1996, the appellant was sentenced on other matters, being given effectively eight years from 3 March 2003 to 2 March 2011, with a non-parole period of five years expiring 2 March 2008. An appeal against that conviction and that sentence was dismissed on 23 December 1996.

PREVIOUS APPLICATION

25 As noted earlier, in 1997 the appellant made an application for an enquiry pursuant to s.474B of the Crimes Act. This application was in relation to the convictions on 18 April 1994, and also the convictions that gave rise to the sentencing on 7 June 1996. The application was refused by Barr J on 29 August 2000.

26 In relation to the subject convictions, the appellant’s grounds were as follows. First, there was the alleged unreliability of the evidence of Mr. and Mrs. Mulholland: one aspect of this was Mr. Mulholland’s explanation of the deficiency of his statement on 27 January 1993 that he was in a rush to collect his children from Bowraville Central School, where enquiries now showed that the school term in 1993 did not commence until 2 February. Second, there was the material concerning honesty of police witnesses arising from the Police Royal Commission, in particular adverse comments concerning Detective Sergeant Ware and Detective Sergeant Fabris. Third, there was the failure of police to investigate relevant evidence, in particular, failure to investigate whether a Boito shotgun, found in the possession of other persons as a result of a suggestion by the appellant, was the one allegedly stolen from the Mulhollands. Next, there was the acquittal of Eric Heuston of charges concerning the same incident. Finally, the alibi evidence was relied on again.

GROUNDS OF APPEAL

27 The appellant relies on the following grounds:

1. There now exists fresh evidence that demonstrates the Appellant's convictions were a miscarriage of justice.
Particulars
as set out in the affidavits of David Phillip Barrow and David Alexander Wetmore:
(a) evidence from the Royal Commission into the NSW Police Service in 1996 of corrupt conduct on the part of Stuart Ware, an investigating police officer.
(b) evidence from an internal police investigation in 1999 (into Task Force Magnum) of the corrupt conduct of Michael Fabris, an investigating police officer.
(c) evidence from the Police Integrity Commission (Operation Florida) in 2000-2 of the corruption of investigating police, namely:
(i) Michael Fabris
(ii) David Minehan
(iii) Dennis O'Toole (the officer in charge of the matter)

(d) evidence of the failure of investigating police to investigate a relevant matter, namely: the location of firearms answering the description of those stolen from the home of the complainants in this matter and clothing consistent with that allegedly worn by the attackers at the home of Craig Goodwin.
(e) evidence that the Bowraville Public School term had not commenced, contrary to the evidence of the complainant Stephen Mulholland, which was relevant to his credibility.

2. The trial miscarried by reason of the trial judge's failure to direct the jury in relation to the significance of the delay in the making of the complaint by Stephen and Deborah Mulholland.

3. The submission to the jury by the Crown Prosecutor ‘Why would Mr and Mrs Mulholland falsely identify the accused?' occasioned a miscarriage of justice.

EVIDENCE ON APPEAL

28 The appellant relied on material which had been put before Barr J, and also on material from a subsequent investigation by the Police Integrity Commission into the Major Crime Squad North, relating to all members of that squad, and in particular Detective Fabris and Detective Minehan.

29 First, there was evidence given before the Commission by a police officer under the code name M5. He gave evidence that when he joined the Armed Holdup Unit attached to the Major Crime Squad North in 1987, it was divided up into two teams of officers, both of which were under the direct supervision of Detective Senior Sergeant Dennis O’Toole. M5 was at the Chatswood Branch, working with Detective Fabris, who arrived there in about 1992, and Detective Minehan. M5 admitted that he had verballed suspects, planted evidence, prepared and used false statements for use in judicial proceedings, and committed perjury. He testified that the squad had a cache of weapons which were used for planting on suspects. They were items which had been seized from offenders but not declared as exhibits against those persons. There was also ammunition, balaclavas and other items. He said that the practice in the squad was, whenever there was an armed robbery, the witness’ statement would be looked at for a description of the weapons and a similar gun would be selected to “load up” suspects. He said that there were occasions when offenders were found with legitimate exhibits, and it was not necessary to use the illegitimate weapons. He said that Detective Minehan and another officer took a pistol to a job in Coffs Harbour, but did not use it because it was not required.

30 M5 said that the cache of weapons was not a secret among the members of the squad. All the members of the squad had some control over it and there was a master key. He said that after Trevor Haken rolled over during the Police Royal Commission, there was an attempt to “clean up the act a bit”. He had helped remove and dump illegal weapons in the Hawkesbury River in about August 1995. He gave evidence that after he told Detective Sergeant O’Toole that a suspect, M11, was not involved in certain robberies but possibly had a knowledge of them, Detective Sergeant O’Toole said “Well, you’re going to have to give him a gun”; and that took place at a later stage.

31 There was also very substantial material concerning Detective Fabris, which, by reason of the provisions of the Police Integrity Commission Act 1996, should not be set out in this public judgment. Suffice it to say that the material would show him to be a person prepared to commit perjury in criminal trials and to “verbal” and “load” suspects.

32 In addition, Detective Fabris was interviewed in relation to the applicant’s arrest in this matter. He admitted that a bag contained guns and balaclavas were taken from the office with a view to using them to incriminate the appellant, but he asserted that they were not used, and that the notes taken of the interview with the appellant, which the appellant signed, were genuine.

33 Detective Minehan gave evidence that he had served with the Major Crime Squad North for about five years, but denied any wrong-doing. He admitted the existence of a locker with guns in it, but asserted they were for “demonstration” purposes. He denied knowledge of the use of such weapons to load up suspects, and denied knowledge of any practice of verballing suspects. He denied any involvement in the dumping of weapons in the Hawkesbury River. He denied planting guns in respect of this case.

34 Detective Senior Sergeant O’Toole gave evidence that he was the supervising senior sergeant of the Armed Holdup Unit of Major Crime Squad North from 1989 to 1994. He too admitted knowledge of a cupboard with guns, but asserted they were for demonstration purposes. He denied any knowledge of planting guns on suspects involving officers of the Unit, and denied participation in that practice or in verballing.

35 Another former detective gave evidence under the name N1, asserting that Detective Sergeant O’Toole received stolen cash from a suspect, and told him he was there to look after the interests of the squad when it came to division of stolen money. He also said that all members of the team (including Detective Minehan) used weapons from the illegal cache of weapons to load suspects; that O’Toole had been involved with “load ups” with him; and that O’Toole’s job was usually to be the senior man who “oversighted the verbal or as the senior man and allegedly disassociated from the actual investigation, his evidence was to lend weight to what had happened”.

36 There were also affidavits from the solicitor and barrister from the original trial as to how they would have proceeded had this material been available to them.

37 The Crown called evidence from Senior Constable Walsh and Detective Sergeant O’Neill. Senior Constable Walsh was not a member of the Major Crime Squad North; and it was he who found the barrels in the grass at Eric Heuston’s place. Detective Sergeant O’Neill gave evidence that he saw Walsh locate the barrels and saw Detective Sergeant Ware open them, and remove inter alia the .357 Magnum replica and the box of .32 cartridges. Detective Sergeant O’Neill was cross-examined as to the practices of the Major Crime Squad North, including the existence of a stash of guns and their disposal in the Hawkesbury River. Detective Sergeant O’Neill denied any knowledge of these matters.

GROUND 1

38 Mr. Game SC for the appellant submitted that, had this material been available, Detective Fabris would have been exposed as a perjurer, who regularly verballed suspects and loaded them up. There would have been effective cross-examination of Minehan, O’Toole and O’Neill concerning the stash of guns, and the taking of guns to Coffs Harbour with the intention of planting them. In those circumstances, the material concerning Ware, relied on before Barr J, would have been of greater significance. There also would have been more significance in the failure of the police to pursue the question of the origin of the Boito shotgun.

39 Furthermore, Mr. Game submitted, there would have been a more effective attack on the Mulhollands, particularly in relation to the progressive improvement over time of their evidence, in relation to such things as the more precise identification of the silver Magnum replica pistol. Furthermore, the difficulty with Mr. Mulholland’s explanation of his first statement, referring to the need to pick up his children from school, would have had greater significance than appeared before Barr J.

40 The Crown Prosecutor submitted that no challenge was raised in relation to Sergeant Smith, and the appellant’s signature of the notes in the notebook disclosing his knowledge of the weapons was still powerful evidence against him, irrespective of any damage done to the credit of the other police officers. Furthermore, he submitted, the identification evidence of the Mulhollands was strong, and strongly supported the conviction of the appellant.

41 In my opinion, the effect of this new material would have been to permit a very powerful challenge to the police evidence. It would have been possible for the appellant to make out a strong case that the police officers involved from the Major Crime Squad North had taken weapons to Coffs Harbour with a view to planting them on the appellant, and a strong case that at least Detective Fabris was a person prepared to give perjured evidence, and to invent verbals and plant evidence. Although the signature by the appellant of the notebook, and Sergeant Smith’s evidence, and also the identification evidence of the Mulhollands, would still have amounted to strong evidence against the appellant, in my opinion there is a significant possibility that a jury, acting reasonably, would not have been prepared to rely at all on the police evidence, and would have been more sceptical of the other evidence; and for those reasons, would not have convicted the appellant. The possible severe discrediting of the police principally involved in the investigation and the arrest, coupled with the circumstance that the Mulhollands gave evidence by arrangement with the same police in return for an immunity for prosecution, would have been powerful considerations in the appellant’s favour.

42 Accordingly, in my opinion the appeal should be allowed on this ground.

GROUND 2

43 Mr. Game submitted that the appellant did not become aware of the allegation against him until nearly six months after the offence, so that he was severely disadvantaged in meeting the prosecution case. In particular, he was unable to call effective alibi evidence, or evidence in relation to the appellant’s appearance at the time. Furthermore, he was deprived of the ability to test the Mulhollands’ evidence concerning their injuries. He submitted that the jury should have been told of these disadvantages: R v. BWT (2002) 54 NSWLR 241.

44 For the Crown, it was submitted that the delay was insufficient in the circumstances to require a warning. The prosecution was equally disadvantaged by the delay, in relation to matters such as injuries and investigations at the scene of the offence. It was also submitted that to require a warning in such circumstances could tend to reward offenders who discourage victims to complain by making threats to them.

45 The question of whether in a particular case a direction or warning of the type discussed in BWT (generally called a Longman direction, after Longman v. The Queen (1989) 168 CLR 79) is required, and what its content should be, can be very difficult. I expressed some views on this in WRC (2002) 130 ACrimR 89: I dissented in that case, but did so principally on the question whether rule 4 could be applied in the circumstances of the case. Indeed, otherwise I substantially agree with the discussion of the matter in WRC by the majority, Greg James J and Kirby J, except in so far as Kirby J at [141] disagreed with certain comments of Wood CJ at CL in BWT.

46 Longman directions have been required particularly in relation to charges of sexual offences, where there has been a substantial delay, generally many years, in making a complaint.

47 One example of a relatively short delay was Jones v. The Queen (1997) 191 CLR 439, where no Longman direction had been given, but the conviction was set aside by the High Court on the basis that it was unsafe and unsatisfactory, not on the basis of inadequate directions. In that case the complaint was made about four years after the earliest alleged offence and about three years after the last alleged offence. Gaudron J, McHugh J and Gummow J noted (at p.454) that: “In some cases – and we thought that this was one – the delay in making the complaint may be so long that it hampers an accused person’s right to defend himself or herself.” They continued (at pp.454-5):

As a result of the long delay in this case, the appellant's opportunity to obtain evidence refuting the circumstances of each alleged offence was significantly reduced. The appellant's and the complainant's movements on the day of the alleged incident concerning the third count were material facts. Proof of them would have gone far to support one or other of the opposing cases. Similarly, whether or not the appellant and the complainant were ever left alone after Saturday classes was a critical fact concerning the first count. Evidence that the appellant was left alone with the complainant would have been highly damning. But if the complaint had been made promptly and the appellant was innocent as he claimed to be, he may have been able to obtain evidence that, on each Saturday in February 1991, he had left the classes in the company of others. The possibility of finding a witness or witnesses with a clear recollection of the relevant days inevitably became more remote as the delay in making the complaint became greater.

The difficulty that the delay caused the appellant is illustrated by the concession of Ms Darvall that it was possible that there had been occasions when the appellant had not driven her home from Saturday gym classes in February 1991. Given the time that had elapsed since the alleged incident, her concession was inevitable. While her evidence indicated that the appellant almost invariably took her home from Saturday classes, the delay and its effect on her recollection forced her to concede that she may not have been present on one of the relevant Saturdays. As a result, the appellant may have been deprived of a cast iron alibi that would have brought about his acquittal.

48 Some of those comments are applicable to this case; but they were not made in the course of determining what, if any, direction was required.

49 Kirby J dissented in Jones; and he noted (at p.464) that: “The circumstances of this case fall far short of those in Longman v. The Queen, where the delay was of the order of 21 to 25 years.”

50 I find it difficult to determine whether a Longman direction was called for in this case. There was a delay of about four months in the making of a complaint, and of about six months before the appellant was notified of the complaint. He was thereby disadvantaged in the sense that he did not have the alibi evidence which he may have had if there had been no delay and if he was innocent. However, this does not appear to have been a case where there was any significant possibility that delay could have caused the prosecution evidence to give a misleading appearance of plausibility, which is in my view an important consideration in determining whether a Longman direction is required and what its content should be. In R v. WRC at [76], I said:

In each of the present cases, in my opinion the Longman direction that was called for was a warning to the effect that the evidence of the complainant and the principal supporting witness had to be considered with great care, and with the appreciation that this evidence may give a misleading appearance of plausibility, because of the lapse of time and because of the consequential disadvantages faced by the appellant in testing it and meeting it. The disadvantages should have been explained as including the difficulty of testing the evidence of the witnesses where the details could not be effectively explored, whether because of understandable lack of detail in the appellant's instructions, understandable lack of detail in the witnesses' answers, inability to test those answers against circumstances that could have been the subject of effective independent checking, or all of these matters; and as also including the difficulties of bringing forward independent evidence which could contradict the account given by the Crown witnesses and support the account given by the appellant.

That kind of warning was not called for in this case.

51 However, I think the better view is that, for abundant caution, a direction should have been given along the lines that, in deciding whether they have a reasonable doubt about the guilt of the accused, the jury should take into account the circumstance that, by reason of the delay in the making of the complaint, and in bringing it to the accused’s attention, the accused’s ability to challenge the prosecution case and to make out any positive defence was reduced; and in particular, although it was not possible to know just what evidence as to his whereabouts and activities at the time of the offence the accused might have been able to call if there had not been this delay, certainly the particular attack made by the prosecution on the alibi evidence that the accused in fact called, based as it was on delay, could not have been effectively made.

52 The determination of this appeal does not require a decision as to whether a Longman direction was required or as to its content. However, I am inclined to the view that the absence of such a direction would not in any event have justified the allowing of an appeal on this ground after such a length of time: cf. R v. Gregory [2002] NSWCCA 199.

GROUND 3

53 Mr. Game pointed out that in his summing up, the trial judge, while setting out submissions of the Crown Prosecutor, stated:

The Crown went on to deal with any motive that Mr. Mulholland or Mrs. Mulholland would have had for falsely identifying the accused and said “Well, why would he do that?”.

54 No objection was made to the Crown submission, and no direction was sought from the trial judge. A number of decisions of the Court of Criminal Appeal have disapproved of such a submission: R v. Uhrig NSWCCA 24/10/96; R v. E (1996) 39 NSWLR 450; R v. Jovanovic (1997) 42 NSWLR 520. Mr. Game submitted that the effect of such a question is to invite the jury to speculate, it is unfair to the accused who is not in a position to see into the mind of the witness, and it could tend to suggest a reversal of the onus of proof.

55 In my opinion, the trial judge should have directed the jury to disregard that submission, and warned the jury against such speculation. However, particularly in circumstances where the matter was not raised at the trial, I do not think this would be sufficient to justify the allowing of an appeal on this ground after such a length of time: cf. Gregory.

APPEAL OR NEW TRIAL

56 Mr. Game submitted that the prosecution case was now very weak: the police evidence was now shown to be weak, and the identification evidence had always been weak, as contended in the earlier appeal, and in any event was now possibly subject to further attack associated with the attack now available on the police evidence.

57 In my opinion, the material relied on by the Crown, in particular the signed notebook, Sergeant Smith’s evidence, and the identification evidence, is sufficient to justify a new trial. There would be point in conducting such a trial, because I propose to act under the Crime Sentencing Procedure Act s.59 and back-date the other sentences, with the result that the appellant will have effectively served only a small part of his sentence for these very serious alleged offences.

58 In circumstances where a new trial is being ordered, no question arises as to the grant of a certificate under the Costs in Criminal Cases Act 1967.

59 For those reasons, in my opinion the following orders should be made:

1. Appeal allowed.
2. Convictions quashed.
3. New trial ordered.
4. Sentences imposed on 7 June 1996 backdated so as to have commenced on 9 March 1993.

60 The result of Order 4 will be that the appellant will have completed those sentences on 8 March 2001, and can apply for bail in respect of the present matters.

61 SIMPSON J: I agree with Hodgson JA.

62 GREG JAMES J: I agree with Hodgson JA.

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Last Modified: 07/01/2003