R v K J - [2005] VSCA 153

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 133 of 2004

THE QUEEN
	v.
K.J.

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JUDGES:	WINNEKE, P., BYRNE and OSBORN, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 May 2005
DATE OF JUDGMENT:	23 June 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 153

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Criminal Law – Sexual offences against young daughter – Whether judge’s directions concerning the applicant’s record of interview breached s.399(3) of Crimes Act 1958 – Delay of 25 and 19 years between alleged commission of offences and complaint – Longman warning given by judge inadequate – Appeal against conviction allowed and retrial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs. C.M. Quin	Mr. S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Respondent	Mr. M.J. Croucher	Victoria Legal Aid

WINNEKE, P.:

I agree with Osborn, A.J.A. that the trial judge, having concluded (correctly in my view) that a warning of the type identified by the High Court in Longman v. R. (1989) 168 C.L.R. 79, and Crampton v. R. (2000) 206 C.L.R. 161); and by this Court in R. v. Glennon(No.2) (2001) 7 V.R. 63), should be given to the jury, did not give a warning in the “unmistakable and firm voice” which those authorities require; nor did he adequately outline the reasons which required such a warning to be given.

The failure to give the warning in the terms, and for the reasons, which the circumstances of this case required constituted a miscarriage of justice which cannot be saved by the application of the proviso.

For these reasons I agree that the appeal must be allowed for the reasons given by Osborn, A.J.A. and a re-trial ordered.

BYRNE, A.J.A.:

I agree with the judgment of my brother Osborn that the application and the appeal against conviction should be allowed and for the reasons which he has stated. I wish only to add the following.

The authorities make it clear that a Longman warning should not be understood as the product of any undue tenderness for accused persons or from any suspicion that complainants or, indeed, any class of witnesses are or may be inherently unreliable. It is part of a concession accorded to the prosecution and that very old cases might be permitted to go to trial[1] rather than be stayed for fear that the lapse of time might cause injustice to the accused.[2] It is a warning which is quite separate from the comment or warning which may be directed to the impact of the

passage of time upon the recollection of the complainant and other prosecution witnesses or the inference which the jury might draw from the delay of the complainant in bringing the allegation forward.[3]

[1]Crampton (2000) 206 CLR 161 at 208 [129], per Kirby j

[2]See Jago v. District Court of New South Wales (1989) 168 C.L.R. 23

[3]Crampton (2000) 206 CLR 161 at 180 [39], per Gaudron, Gummow and Callinan JJ; MCG [2001] VSCA 17 at [91], per Winneke P and Ormiston JA

In summary,…

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 K J

Details

AGLC: R v K J [2005] VSCA 153
Case: [2005] VSCA 153
Decision Date: 23 June 2005

CaseChat Overview and Summary

The case of R v K J involves the appellant who was convicted of multiple sexual offences against his young daughter, with the alleged events occurring over 25 and 19 years prior to the complaint being made. The appellant appealed against his conviction, arguing that the trial judge's directions regarding his record of interview breached section 399(3) of the Crimes Act 1958, thereby unfairly prejudicing the jury against him. The court was required to determine whether the judge’s directions were indeed improper and if such an error was material to the outcome of the trial.

The court examined the nature and extent of the alleged delay between the commission of the offences and the subsequent complaint, and the adequacy of the Longman warning issued by the judge. The appellant contended that the lengthy delay and the judge’s handling of the record of interview had a significant impact on the fairness of the trial. The court found that the judge’s directions were indeed flawed and that the Longman warning was inadequate to mitigate the prejudicial effect on the jury. As a result, the appeal was allowed on the grounds that the trial process was unfair due to these errors.

The court ordered a retrial for the appellant, recognising the serious consequences of a criminal conviction and the necessity for a fair trial process. The retrial was deemed necessary to ensure that the appellant received a trial free from the prejudicial errors that occurred in the original proceeding. The court underscored the importance of proper judicial direction in trials involving allegations of historical sexual offences and lengthy delays between the alleged events and the prosecution.

Orders