CITATION: REGINA v FOLLI [2001] NSWCCA 531 FILE NUMBER(S): CCA 60033/01 HEARING DATE(S): 7 December 2001 JUDGMENT DATE:
19 December 2001PARTIES :
REGINA v Michael FOLLIJUDGMENT OF: Mason P at 1; Sperling J at 29; McClellan J at 30
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 99/21/2160 LOWER COURT JUDICIAL
OFFICER :Gibson DCJ
COUNSEL : Appellant: H Dhanji
Crown: R EllisSOLICITORS: Appellant: Beston Macken McManis
Crown: S O'ConnorCATCHWORDS: Criminal Law - Appeal against conviction - Leave to appeal against sentence - indecent assault - sexual intercourse without consent - complainants brothers - over 17 year delay in complaint - Longman warning required rather than mere comment on delay - cannot be said conviction inevitable - direction fundamentally flawed - new trial. CASES CITED: Longman v The Queen (1989) 168 CLR 79
Crofts v The Queen (1996) 186 CLR 427
The Queen v Johnston (1998) 45 NSWLR 362
Crampton v The Queen (2000) 75 ALJR 133
Doggett v The Queen (2001) 75 ALJR 1290
R v GPP [2001] NSWCCA 493DECISION: Appeal allowed, Conviction and sentence set aside, new trial ordered
MASON PCCA 60033/01
SPERLING J
MCCLELLAN J
Wednesday 19 December 2001
REGINA v Michael FOLLI
JUDGMENT
The appellant appeals against conviction and seeks leave to appeal against sentence. He was tried in the District Court in November 2000 before Judge Gibson and a jury. The indictment charged certain counts in the alternative. Since, however the appellant was convicted on all of the primary charges it is sufficient if they are set out:
- Count 1 : For that he between 1.1.80 and 31.12.80, did indecently assault the first complainant (s81 Crimes Act 1900 . Maximum penalty 5 years).
- Count 2 : For that he around March 1983 did indecently assault the first complainant (s81 Crimes Act 1900 . Maximum penalty 5 years).
- Count 3 : For that he between 1.2.83 and 30.6.83 did indecently assault the first complainant (s81 Crimes Act 1900 . Maximum penalty 5 years).
- Count 4 : For that he between 1.2.83 and 31.12.83 did indecently assault the first complainant (s81 Crimes Act 1900 . Maximum penalty 5 years).
- Counts 5, 7 and 9 : For that he between 1.2.83 and 31.12.83 did have sexual intercourse with the first complainant without his consent (s61D(1) now repealed Crimes Act 1900 . Maximum penalty 10 years).
- Counts 6, 8 and 10 : In the alternative to Counts 5, 7 and 9 : For that he between 1.2.83 and 31.12.83 did indecently assault the first complainant (s81 Crimes Act 1900 . Maximum penalty 5 years).
- Counts 11 and 13 : For that he between 1.2.83 and 26.11.83 did have sexual intercourse with the second complainant without his consent (s61D(1) now repealed Crimes Act 1900 . Maximum penalty 10 years).
- Counts 12 and 14 : In the alternative to Counts 11 and 13 : For that he between 1.2.83 and 26.11.83 did indecently assault the second complainant (s81 Crimes Act 1900 . Maximum…
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- AGLC
- REGINA v Folli [2001] NSWCCA 531
- Case
- [2001] NSWCCA 531
- Decision Date
CaseChat Overview and Summary
Regina v Folli is an appeal against conviction where the appellant, Folli, had been found guilty of indecent assault and sexual intercourse without consent. The case was heard in the court of appeal. The complainants in the case were the brothers of the victims, and the crux of the appeal was the substantial delay of over 17 years in the reporting of the incidents. The appellant argued that the delay necessitated a more robust warning, akin to the Longman warning, rather than the mere comment made by the trial judge about the delay.
The central legal issue for the court to decide was whether the trial judge's handling of the delay in reporting was adequate and whether it impacted the safety of the appellant's conviction. The court was required to determine if the trial judge's direction on the issue was fundamentally flawed, potentially affecting the fairness of the trial. The appeal hinged on whether the delay was so significant that it required a specific warning to the jury, similar to that in Longman v R, rather than a simple comment.
In addressing these issues, the court found that the trial judge's approach to the delay was inadequate. The court determined that a Longman warning, which provides a more detailed instruction to the jury about the implications of a long delay in reporting, was necessary rather than a mere comment. The court concluded that this fundamental flaw in the direction given to the jury meant that the conviction could not be said to be safe. Consequently, the appeal was allowed, and the convictions were quashed. The court ordered a new trial to be conducted, ensuring that the jury was properly directed on the issue of delay in reporting.
The central legal issue for the court to decide was whether the trial judge's handling of the delay in reporting was adequate and whether it impacted the safety of the appellant's conviction. The court was required to determine if the trial judge's direction on the issue was fundamentally flawed, potentially affecting the fairness of the trial. The appeal hinged on whether the delay was so significant that it required a specific warning to the jury, similar to that in Longman v R, rather than a simple comment.
In addressing these issues, the court found that the trial judge's approach to the delay was inadequate. The court determined that a Longman warning, which provides a more detailed instruction to the jury about the implications of a long delay in reporting, was necessary rather than a mere comment. The court concluded that this fundamental flaw in the direction given to the jury meant that the conviction could not be said to be safe. Consequently, the appeal was allowed, and the convictions were quashed. The court ordered a new trial to be conducted, ensuring that the jury was properly directed on the issue of delay in reporting.
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Background
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Evidence
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Decision
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