REGINA v FOLLI [2001] NSWCCA 531

New South Wales Court of Criminal Appeal

CITATION : REGINA v FOLLI [2001] NSWCCA 531 FILE NUMBER(S) : CCA 60033/01 HEARING DATE(S) : 7 December 2001 JUDGMENT DATE : 19 December 2001

PARTIES : REGINA v Michael FOLLI JUDGMENT 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 Gibson DCJ OFFICER :

COUNSEL : Appellant: H Dhanji Crown: R Ellis SOLICITORS : Appellant: Beston Macken McManis Crown: S O'Connor CATCHWORDS : 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. Longman v The Queen (1989) 168 CLR 79 Crofts v The Queen (1996) 186 CLR 427 CASES CITED: 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 493 DECISION : Appeal allowed, Conviction and sentence set aside, new trial ordered

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CCA 60033/01

MASON P SPERLING J MCCLELLAN J

Wednesday 19 December 2001 REGINA v Michael FOLLI

JUDGMENT 1 MASON P: 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he between 1.2.83 and 31.12.83 did have sexual intercourse with the first complainant without his consent (s61D(1) now repealed Crimes Act 1900 .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 penalty 5 years).