Regina v Garlick

[2003] NSWCCA 398

CITATION:	REGINA v. GARLICK [2003] NSWCCA 398 revised - 6/02/2004
HEARING DATE(S):	Thursday 18 December 2003
JUDGMENT DATE:	18 December 2003
JUDGMENT OF:	Sully J at 1/24; Greg James J at 1; Adams J at 27
DECISION:	Appeal allowed; verdict of acquittal entered.
CATCHWORDS:	Criminal law - appeal - sexual offences against boys - long delay in complaint - directions as to effect of delay inadequate - error conceded - error amounts to miscarriage - proviso cannot be applied - whether to order new trial or acquittal - sentence substantially served - little if any corroboration - offences over 30 years old - discretion to order new trial not exercised - convictions and sentences quashed - later sentences cumulative on sentences set aside - commencement date of sentences on those matters varied so that all custody served applied to those offences.
LEGISLATION CITED:	Criminal Appeal Act 1912
CASES CITED:	Crampton (2000) 206 CLR 161 DPP (Nauru) v. Fowler (1984) 154 CLR 627 King (1986) 161 CLR 423 Longman (1979) 168 CLR 79
PARTIES :	REGINA v. GARLICK, Maxwell Henry
FILE NUMBER(S):	CCA No. 60371/03; No. 60372/03
COUNSEL:	Crown: E. Wilkins App: R. Burgess
SOLICITORS:	Crown: S. Kavanagh App: S. O'Connor

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	98/41/0298; 01/21/0089
LOWER COURT JUDICIAL OFFICER :	Moore, DCJ; Puckeridge, DCJ

No. 60371 of 2003
No. 60372 of 2003

SULLY, J.
GREG JAMES, J.
ADAMS, J.

THURSDAY 18 DECEMBER 2003

REGINA v. MAXWELL HENRY GARLICK

Judgment

1 SULLY, J: Justice Greg James will give the first judgment.

2 GREG JAMES, J: This is an appeal against his convictions brought by an appellant who stood trial in the District Court of New South Wales before Judge Moore and a jury in late May and early June 2000. The appellant was convicted on six counts alleging sexual offences against the same complainant. Those counts alleged the commission of those sexual offences during several years in the early 1960s.

3 There is also an application for leave to appeal against sentences imposed by Puckeridge DCJ. following pleas of guilty to two further offences, which sentences were made cumulative on those imposed by Moore, DCJ. In both cases leave to appeal out of time is necessary.

4 The complainant came forward to the police in respect of those matters after his marriage had broken up and he had remarried. He first spoke to police officers and provided them with a statement in March 1997. This was over 30 years after the events. When he came forward he was recalling events which had taken place when he was between the ages of 13 and 17, he at that time was about 52 years of age. The appellant was said to have been between 25 and 29 at the time at which these events occurred and was 65 at the time of the trial.

5 Thirty seven years had elapsed between the time of the first alleged offence and the time of the making of the statement to the police about it. At the trial it is common ground that the directions the learned trial judge gave to the jury did not accord with the requirements this court and the High Court of Australia had enunciated in many decisions as necessary to ensure a fair trial where such a delay has occurred.

6 It was conceded in the Crown's submissions that the first of the grounds of appeal put forward on this appeal should be made out. That ground reads as follows:

"The trial miscarried as a result of the failure of the trial judge adequately to direct the jury in relation to the significance of substantial delay in complaint.”

7 The Crown's submissions set out the following:-

"The matter came to trial 36 to 39 years after the alleged dates of the offences. The case depended solely upon the word of the appellant, there being no witnesses to the events and no admissions by the appellant. No direction of the type referred to in Longman v. the Queen (1979) 168CLR 79 at 91 was given in this case. This was a case that required a Longman warning.”

8 The Crown had referred to the necessary aspects of the Longman warning but concluded its submission conceding this ground on the first aspect of the Longman warning in saying:-

"This fell short of the required direction that because of the delay, it would be dangerous to convict on the complainant's evidence alone unless the jury, scrutinising the evidence with great care was satisfied beyond reasonable doubt of its truth and accuracy.”

9 The Crown concedes that no direction was given in this case as to the significance of delay in terms of its effect upon the appellant's ability to test the allegations made by the complainant and to obtain evidence to meet them.

10 It was in those circumstances that the Crown conceded that what comments were made by his Honour as to delay fell short of a warning sufficient to satisfy either aspect of the Longman direction or the requirements of those directions as confirmed by the High Court in Crampton v. The Queen (2000) 206 CLR 161 at 207-8, paragraphs 125 and 126.

11 The Crown conceded this was a matter to which the proviso to s.6 of the Criminal Appeal Act 1912 could not go but did submit that a retrial should be ordered on all counts. There should be further reference of a short kind time to certain of the matters to which the Crown has already drawn attention. Although the case did depend upon the evidence of the complainant and the appellant and there were no independent witnesses to the events nor admissions, there was some evidence concerning some complaint said to have been made to a Mrs. Abernathy at the time of an offence which was charged as count five.

12 It appears that on any version of the events some altercation had occurred and the complainant had asserted an attempt to assault him in some way.

13 Due to the lapse of time such evidence of this complaint, as there might have been, to the police is now unavailable. There was some conflict as to the nature of the complaint and the detail of what it was said in that complaint might have occurred between the complainant and the appellant on other occasions arising as and between the evidence of the complainant and Mrs. Abernathy, the person to whom it was said the complaint was made.

14 On Mrs. Abernathy's version the complainant denied there having been any previous sexual offences committed upon him by the appellant. On the appellant's version he had complained concerning other sexual offences. It is the Crown's submission that in relation to all these offences there should be a retrial arising from the miscarriage occasioned by the lack of the appropriate direction.

15 Section 8 of the Criminal Appeal Act 1912 provides for a power not originally granted to the United Kingdom criminal appellate courts to award a new trial. It provides:-

“(1) On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make.”

16 Section 6 which provides the legislative guide to what the court might do in determining appeals provides by subsection (2):-

“(2) Subject to the special provisions of this Act, the court shall, if it allows an appeal under s.5(1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.”

17 The words “subject to the special provisions of this Act” refer inter alia to s.8. It is apparent then that in the event of the court finding a miscarriage has occurred it is necessary to ascertain whether such miscarriage can be more adequately remedied by an order for a new trial. In this respect, the common form criminal appeal provisions throughout Australia of which s.8 of the New South Wales Act is an example have been considered by the High Court of Australia in a number of decisions including in a decision on appeal to that Court from Nauru.

18 DPP (Nauru) v. Fowler (1984) 154 CLR 627 was a decision in which the High Court emphasised the necessity for a court considering whether to grant a new trial or not to have regard to "all the circumstances" as s.8 provides.

19 A correct approach has been held to be that each case has to be considered on all the facts and all the relevant considerations that apply to it, regard being had to the personal considerations of the appellant and to the overall justice of the case and in particular to the fair and impartial administration of justice: see King v. the Queen (1986) 161 CLR 423.

20 Where there is sufficient evidence that the matter might at trial be left to the jury the discretion is enlivened. Where as here the alleged events are so old and the opportunity of the appellant at a new trial to test the evidence as to them, is inevitably affected by the delay such that having proper regard to the impact of a direction to be given under Longman (supra) and Crampton (supra) it is not possible to say that the jury is highly likely to convict the Court is confronted with a difficult question.

21 This appellant has been in custody in respect of these matters for the bulk of the non-parole period imposed on the sentence imposed by the learned trial judge. There is no Crown appeal against sentence. There are a number of criticisms raised of the evidence of the complainant going, in my view, to matters of detail but matters that could be regarded as matters of seriousness as to the complainant's credibility on each count.

22 As far as the count on which the corroboration or early complaint to which I have referred is concerned, nonetheless the complaint was in such vague terms as not clearly to indicate just what had occurred such as to support the charge brought.

23 Putting it all together, and having regard to all relevant circumstances, I have not been persuaded by what the Crown has put that there should be a new trial on all of these counts or on any one of them. In my view, the appropriate course to take is that the appeal against the convictions following the trial before Moore, DCJ. should be allowed and the verdict of acquittal referred to in s.6 be entered. These are the orders I would propose.

24 SULLY J: I agree and I'll have something to say in a moment. Could I just raise, both for my brothers’ consideration and indeed for the assistance of counsel, it would be appropriate, would it not, to deal with both of the matters together since we've effectively heard them, in which event would we not do this: Grant leave to appeal out of time in both of the matters CCA60371 and CCA60372; in matter CCA60371 order that the appeal be allowed, that the convictions and sentences be quashed and on each count there be a directed judgment of acquittal, and that in matter CCA60372 grant leave to appeal against the sentence, appeal allowed to the extent of varying the commencing date of the sentences and non-parole periods from 3 December 2004 to 13 July 2000? Does that cover everything, Miss Burgess?

BURGESS: Yes, it does.

SULLY J: Madam Crown, is that adequate? Allow the appeal to the extent of varying the commencing date of the sentences and the non-parole periods from 3 December 2004 to 13 July 2000?

WILKINS: Yes, your Honour. I had understood my friend was going to technically abandon those appeals and your Honour would make an order under s.58 of the Crime Sentencing Procedure Act but I don't have a difficulty whichever way --

GREG JAMES J: It's exactly the same effect.

BURGESS: I don't have a problem with that course.

25 GREG JAMES J: I agree with the orders proposed by the learned presiding judge for the reasons that I have given.

26 SULLY J: I agree that such orders should be made. I agree generally with the reasons given by Justice Greg James. Because of the circumstances of this case I wish myself to add three observations as follows: One, the decision of this court in these particular matters ought not to be regarded in any quarter as in any way detracting from the seriousness of the types of conduct charged against the appellant; two, the particular decision in these matters does not in any way weaken the proposition that a miscarriage of justice deriving from the failure to give a proper Longman direction will more often than not be sufficiently corrected by an order for a new trial; three, the directed acquittals in the present case are justified in my view by a concatenation of very unusual circumstances of which it is sufficient to say that they are adequately described, as I respectfully think, in what has fallen from Justice Greg James. Subject to those additional matters I concur in the making of the orders.

27 ADAMS J: I agree with the orders proposed and what has fallen from both Justice Greg James and Sully, J.

28 SULLY J: Those will be the orders, accordingly.

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Last Modified: 03/19/2004