R v WSP

Case [2005] NSWCCA 427 14 December 2005

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CITATION:
R v WSP [2005] NSWCCA 427

HEARING DATE(S): 31 October 2005

JUDGMENT DATE:

14 December 2005

JUDGMENT OF:
Spigelman CJ at 1; Sully J at 71; Hulme J at 94

DECISION:
See paragraph 190

PARTIES:
Regina
WSP

FILE NUMBER(S):
CCA 2005/1096

COUNSEL:
Crown: N Norman
Appellant: P Boulton SC

SOLICITORS:
Crown: K Owens
Appellant: Mark Klees & Associates

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
02/21/3476 02/21/3466

LOWER COURT JUDICIAL OFFICER:
Latham DCJ

- 54 -

2005/1096

SPIGELMAN CJ
SULLY J
HULME J

REGINA v WSP

Judgment

1 SPIGELMAN CJ: I have read the judgment of Hulme J in draft. I agree with his Honour’s reasons in the first trial, involving the complainant MK and with the order his Honour proposes in that case. With respect to the second trial, involving the complainant CJ, his Honour sets out the facts and the issues and I gratefully adopt his Honour’s reasons in that respect. His Honour would allow the appeal on the basis of the inadequacy of the Longman warning and order a new trial.

2 The stringency of the requirement for a Longman warning has emerged clearly from the majority judgments in Crampton v The Queen (2001) 206 CLR 161 and Doggett v The Queen (2001) 208 CLR 343, which were analysed in this Court in the judgments of Wood CJ at CL and Sully J in R v BWT (2002) 54 NSWLR 241. Subsequent to that analysis the High Court returned to the issue in Dyers v The Queen (2002) 210 CLR 285 and held, notwithstanding a delay of five years, that no Longman warning was required.

3 The analysis in BWT has not been adopted in other cases. (See e.g. R v DBG (2002) 133 A Crim R 227 at [28]; Christophers v The Queen (2000) 23 WAR 106 at [37]; Chrisafio v The Queen (2003) 27 WAR 169 at [1], [30]-[31]; RBK v The Queen [2004] WASCA 216 at [34], [99]; Ada v Western Australia [2005] WASCA 162 at [15].) However, in view of my conclusions below, it is unnecessary to consider this further.

4 Hulme J has set out the whole of the warning that the trial judge gave on the effect of delay. A number of the features of what her Honour did say are of particular significance.

5 First, her Honour expressed her observations in terms of a “warning”, it was not merely a comment. Nor did her Honour say anything to diminish the force of the warning she gave.

6 Secondly, her Honour clearly added the weight of the authority of the Court on this matter. She made express reference to trial counsel’s address and reinforced it. The summing-up occurred on the day after the addresses. The jury would have in mind the addresses on the issue of delay, particularly that of counsel for the accused. Her Honour said:

“As Mr Buckman has made clear to you, it is obvious…

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 WSP

Details

AGLC: R v WSP [2005] NSWCCA 427
Case: [2005] NSWCCA 427
Decision Date: 14 December 2005

CaseChat Overview and Summary

This case involved two appeals by WSP against his convictions for indecent assault and sexual intercourse without consent against two complainants, MK and CJ. The Court was required to decide whether the trial judge had erred in not giving a Longman warning about the effect of delay on the ability of the accused to defend himself. The Court was also required to decide whether the trial judge had erred in not directing the jury about the limited use they could make of evidence of prior sexual misconduct not the subject of the charges, and whether the trial judge had erred by failing to caution the jury about the dangers of acting upon the admissions that the Appellant made to KK and JK. The Court held that the trial judge had not erred in not giving a Longman warning in the first trial as there was no irrebuttable presumption of fact that prejudice had occurred due to the delay. The Court also held that the trial judge had not erred in not directing the jury about the limited use they could make of evidence of prior sexual misconduct not the subject of the charges, and had not erred by failing to caution the jury about the dangers of acting upon the admissions that the Appellant made to KK and JK. The Court granted an extension of time for the lodging of the Notices of Appeal and Application for Leave to Appeal in the case of the second trial, and allowed the appeal against the convictions in the second trial. The Court ordered a new trial of the charges the subject of those convictions.

Orders