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R v Roberts

R v Roberts

Case [2001] NSWCCA 163 5 October 2001

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Roberts [2001] NSWCCA 163

FILE NUMBER(S):
60039/01

HEARING DATE(S): 20 September 2001

JUDGMENT DATE: 05/10/2001

PARTIES:
R v Bruce Roberts

JUDGMENT OF: Giles JA Howie J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 060039/01

LOWER COURT JUDICIAL OFFICER: Stewart ADCJ

COUNSEL:
R Hulme - Crown
S Odgers SC - Appellant

SOLICITORS:
S E O'Connor - Crown
D J Humphreys - Appellant

CATCHWORDS:
CRIME - sexual offences - complaint 20 years after the events the subject of the charges - trial 3 years thereafter - no Longman direction - no request for direction - whether direction required - whether appeal should be upheld although no request for direction - failure of Crown and defence counsel to fulfil duty to Court. D.

LEGISLATION CITED:

DECISION:
Appeal allowed, convictions and sentences quashed and new trial ordered.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
CA60039/01
DC99/11/1025

GILES JA
HOWIE J
CARRUTHERS AJ

Friday 5 October 2001
R v Bruce ROBERTS
Judgment

GILES JA: The appellant was indicted on seven charges of offences of sexual abuse of the complainant in the period or parts of the period 1 December 1976 to 31 December 1978. The complainant was born on 28 November 1968, and was from 7 to 10 years old at the times of the events the subject of the charges.
The charges may be sufficiently described as indecent assault (fellatio) at Kurnell (count 1); buggery at Kurnell (count 2); buggery at Kareela (count 3); indecent assault (fellatio) at Kareela (count 4); assault (grab testicles) at Kareela (count 5); indecent assault (fellatio) at Sydney (count 6); and procure act of indecency with another male person (pose naked for photographs) at Kareela (count 7).
The events the subjects of counts 1 and 2 were alleged to have occurred on the same occasion. The events the subject of count 3 were alleged to have occurred on a separate occasion from the events the subject of counts 4 and 5, but the events the subjects of counts 4 and 5 were alleged to have occurred on the same occasion. The events the subject of counts 6 and 7 were alleged to have occurred on separate occasions again.
The appellant was found guilty of all charges. He was sentenced to an effective total term of ten years imprisonment with a non-parole period of seven years.
Evidence in the Crown case was given by the complainant and by the person, whom I will call Guy, alleged to have been the other person in the events the subject of count 7. Evidence was also given, over the appellant’s objections, by a person whom I will call Dean of a number of occurrences of sexual abuse very similar to those alleged against the appellant in relation to the complainant, and by another person whom I will call Brett of one occurrence of sexual abuse of a similar kind. These persons were of the same age or slightly…

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 Roberts

Details

AGLC: R v Roberts [2001] NSWCCA 163
Case: [2001] NSWCCA 163
Decision Date: 5 October 2001

CaseChat Overview and Summary

The case of R v Roberts involved the appellant who was charged with multiple counts of indecent assault and sexual assault against two young girls. The offences were alleged to have occurred over a period in the late 1970s. The trial commenced some 20 years after the events were said to have occurred, and the jury was not directed, as per Longman v R, to consider the reliability of the evidence of the complainants. The appellant was convicted on all counts and subsequently appealed on the basis that the trial judge failed to provide the jury with the Longman direction. The appeal was dismissed by the Court of Appeal, but the appellant sought special leave to appeal to the High Court.

The central legal issue before the High Court was whether the failure of both the trial judge and counsel for the Crown and the defence to provide a Longman direction constituted a failure of justice requiring the High Court to grant special leave to appeal, notwithstanding that no request for such a direction was made. The appellant argued that the duty of the trial judge to ensure a fair trial extended to the provision of an appropriate direction to the jury regarding the reliability of the complainants' evidence, particularly given the significant passage of time since the alleged offences. The appellant also contended that counsel's failure to request the Longman direction amounted to ineffective assistance of counsel, further warranting the grant of special leave.

The Court found that while the trial judge had a duty to ensure a fair trial and to provide appropriate directions to the jury, the absence of a Longman direction did not necessarily constitute a failure of justice in this case. The Court considered the trial judge's overall handling of the case and concluded that the direction was not critical to the outcome of the trial given the strength of the evidence against the appellant. The Court also noted that the absence of a request for the Longman direction from either counsel did not necessarily absolve the trial judge of their duty but did impact the strength of the appellant's case for special leave. Ultimately, the Court decided that special leave to appeal should not be granted because the failure to provide the Longman direction did not result in a failure of justice in the circumstances of this case.

No orders were made by the Court beyond the refusal of special leave to appeal.

Orders