R v RWB

Case [2003] SASC 420

R v RWB

[2003] SASC 420

Court of Criminal Appeal:  Bleby, Besanko and Sulan JJ

  1. BLEBY J: On 27 October 2003, for reasons to be published, we unanimously ordered that this appeal be allowed, the convictions set aside and that there be a retrial.

  2. I agree with Besanko J, and for the reasons that he gives, that a full Longman warning was not required in this case in respect of the charged acts.  I also agree with what Besanko J has said about the uncharged acts.  On the authorities, a Longman warning was required before the jury could find those acts proved.  Not only was there a long delay in their being reported, but they were vague as to time and circumstance.  I make no comment on their admissibility, as it was not argued before us.  However, the failure to give a Longman warning in respect of the uncharged acts was sufficient to justify allowing the appeal.

  3. I find it difficult to accept, and I do not think that the cases require, that the giving of a Longman warning is governed solely by delay in reporting the relevant events.  In some cases, the delay alone and the prejudice created by it will be self-evident such as to require the warning.  In other cases the delay may not be unreasonably long but the circumstances or possible period in which the incident is alleged to have occurred or both may be such as still to require a Longman warning.  There will be yet other circumstances of moderate delay where events can be pinpointed with some accuracy and there is no apparent prejudice to the accused.     A Longman warning may then not be necessary.

  4. On the other hand, while what is commonly described as a Longman warning may not be necessary, a warning beyond a requirement to scrutinize uncorroborated evidence carefully merely because it is uncorroborated may be necessary.  The warning, while not necessarily requiring the full force of the Longman warning, will need to be tailored to suit the circumstances of the case and the reasons why a complainant’s evidence should be scrutinized before acting on it.

  5. Inevitably, there will be areas of grey, and some latitude must be afforded to the assessment of the trial Judge of the degree of prejudice or disadvantage (if any) to which the accused may be subject in the particular case.

  6. This case was argued solely on the lack of a Longman warning.  No submissions were put in the alternative as to any other defects in the summing up such as to require something more than was given, but something short of a Longman warning.  In those circumstances I hesitate to express any view as to what should have been said by the trial Judge over and above what he did say.  It is sufficient to say that, while a Longman warning was not required for the charged acts, something more should, in my view, have been said in drawing attention to other reasons why…

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R v RWB [2003] SASC 420
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[2003] SASC 420
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CaseChat Overview and Summary

In the case of R v RWB, the appellant has appealed against his convictions for three counts of unlawful sexual intercourse. The convictions were made on 30 May 2003, and the appeal focuses on the trial judge's failure to warn the jury of the dangers inherent in convicting on the uncorroborated evidence of the complainant, particularly in light of the significant delay between the alleged incidents and the complaint. The appellant argues that this omission constituted a legal error that deprived him of a fair trial.

The central legal issue in this appeal is the extent to which a trial judge is obligated to warn the jury of the risks associated with convicting on uncorroborated evidence when there has been a substantial delay between the alleged conduct and the complaint. This question hinges on the principle established in Longman v The Queen, where the High Court emphasized the necessity of a warning to avoid a risk of a miscarriage of justice. The Longman decision underscored that when evidence cannot be adequately tested due to a significant delay, it is crucial for the trial judge to instruct the jury on the dangers of convicting on such evidence alone.

In considering the issue, the court noted that the prosecution's case relied entirely on the uncorroborated testimony of the complainant. The substantial delay between the alleged incidents and the complaint meant that the appellant had lost the opportunity to properly challenge the complainant's evidence. This loss of opportunity was significant enough to warrant a warning from the trial judge. The court concluded that the failure to issue such a warning constituted a legal error, as it deprived the appellant of a fair trial. Consequently, the appeal was allowed, the convictions were set aside, and a retrial was directed on the charges in the Information.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Judge did not give such a direction in this case. I think that his failure to do so constituted an error of law. I do not think that it can be said that the jury would have convicted in any event. The prosecution case rested on the uncorroborated evidence of the complainant. The appellant has lost a chance of an acquittal reasonably open to him.Conclusion The appeal should be allowed and the convictions set aside. I would direct a retrial on the charges in the Information. SULAN J: The appellant was convicted of three counts of unlawful sexual intercourse. The first two counts took place between 1 August 1999 and 30 October 1999. The third count occurred between 1 October 1999 and 18 November 2001. The appellant was convicted on 30 May 2003. He has appealed against his convictions. The appeal raises the issue of the extent to which a trial judge is required to warn the jury of the danger of convicting an accused without scrutinising the evidence of the complainant with care when there has been a delay between the alleged conduct and the complaint.The Longman Warning In Longman v The Queen[1], the High Court reaffirmed the principle that a warning is required whenever it is necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case. (See Bromley v The Queen (1986) 161 CLR 315.)[1] (1989) 168 CLR 79 The applicant, Longman, had been convicted of two counts of indecently interfering with a young girl under the age of fourteen. The conduct occurred some 26 years and some 22 years respectively before the trial. Longman was first interviewed after a complaint had been made some 25 years after the first alleged incident and 22 years after the second. He denied any indecent interference with the complainant. There was no independent corroborative evidence of the allegations. Brennan, Dawson and Toohey JJ referred to a number of significant circumstances, including the delay in the prosecution, the nature of the allegations, the age of the complainant at the time of the events, the awakening of a sleeping child by indecent acts and the absence of complaint as being factors which would, in the usual course of events, call for a comment by the trial judge. The majority identified one factor of particular significance, being the applicant’s loss of the means of testing the complainant’s allegations as a consequence of the delay. The court observed that if the allegations had been made in a timely way, the applicant would have been able to explore the circumstances of the two occurrences in detail, and may possibly have been able to adduce evidence throwing doubt upon the complainant’s story. The court observed that “after more than 20 years, that opportunity was gone and the applicant’s recollection of them (the occurrences) could not be adequately tested”.[2] They concluded that the fairness of the trial had necessarily been impaired by the long delay. They further concluded that 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 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and, paying heed to the warning, was satisfied of its truth and accuracy. [2] Ibid at 91.

Ratio Decidendi

Legal Principle Established

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