Reported Decision : (2002) 131 A Crim R 54 New South Wales Court of Criminal Appeal CITATION : Regina v GEA [2002] NSWCCA 222 FILE NUMBER(S) : CCA 60098/01 HEARING DATE(S) : 03/06/02 JUDGMENT DATE : 3 June 2002 PARTIES : Regina GEA JUDGMENT OF : Heydon JA at 16, 18; Hidden J at 1; Blanch AJ at 17 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/61/0107 LOWER COURT JUDICIAL Gibson DCJ OFFICER : COUNSEL : PG Ingram - Crown PM Winch - Appellant SOLICITORS : S E O'Connor - Crown D J Humphreys - Appellant CATCHWORDS : CRIMINAL LAW: Appeal against conviction - sexual offences - adequacy of trial judge's warning about delay in complaint. Longman v The Queen (1989) 168 CLR 79 CASES CITED: Crampton v The Queen (2000) 176 ALR 369 Doggett v The Queen (2001) 182 ALR 1 DECISION : See para 15 IN THE COURT OF CRIMINAL APPEAL 60098/01 HEYDON JA HIDDEN J BLANCH AJ Monday 3 June 2002 REGINA v GEA Judgment 1 HIDDEN J: The appellant was tried in the District Court upon an indictment containing three counts of homosexual intercourse, one count of attempted homosexual intercourse and two counts of committing an act of gross indecency with a male person. He was found guilty of those counts and sentenced to terms of imprisonment. He appeals against his conviction and seeks leave to appeal against sentence. 2 Given the view I have taken of the outcome of this matter, it is unnecessary to recite the allegations in the Crown case. It is sufficient to say that the appellant was the stepfather of the complainant, the three counts of homosexual intercourse were allegations of fellatio performed by the appellant upon the complainant; the count of attempted homosexual intercourse was an allegation of attempted anal penetration, and the counts of committing an act of gross indecency were allegations that the appellant placed his penis, in effect, between the thighs of the complainant. 3 The first count arose from an event said to have occurred late in 1986. The counts are then sequential in time, and the last count is in relation to an event said to have occurred in early 1992. No complaint was made until 1997, when the complainant complained to his mother about the appellant's conduct. Accordingly, from the time of the event the subject of the first count some eleven years have passed until the first complaint, while five and a half years have passed between the time of the event the subject of the last count and that complaint. The complaint to the police was made in 1998. 4 A number of grounds of appeal have been filed and have been addressed in written submissions. The argument today is centred upon the first of them and it asserts that the learned trial judge's directions to the jury about delay in complaint were inadequate. In the view I have formed, that ground is made out and is such that the convictions must be quashed. What his Honour had to say about that matter is this: "There is one other warning I have got to give you, and that is the evidence has been given in these trials of events that are alleged to have occurred in about 1986 onwards to 1992. Some fourteen years ago, when the complainant was in late primary school and early high school according to the complainant. Time has made it difficult for witnesses to completely recall circumstances and details. Memories can fluctuate and fade over such a period of time quite obviously, as can be seen in the witnesses called on behalf of the Crown including the mother who says she could not being her mind exactly when these things occurred. As can be seen, as I say, perhaps leaves scope for the dishonest if there be any, and no complaint was made until 1998. Investigation has been made difficult by this delay, not only for the Crown but also for the accused, to find witnesses and records and the like. These matters may lead to a situation in which the evidence may be unreliable for a number of reasons. One, the age of the witnesses at the time, the period of time that I have referred to, that has elapsed and the interference occasioned to both sides to fully investigate, all may contribute. I say may be unreliable, not must be. You should carefully consider the factors that I have mentioned when assessing the evidence and the witnesses and the weight to be given to the evidence of the various witnesses." 5 His Honour had earlier in the summing up given the conventional direction arising from the fact that the evidence of the complainant was uncorroborated and required to be scrutinised with care. 6 Directions by a trial judge in cases such as this, where there has been significant delay between allegation and complaint, were considered by the High Court in Longman v The Queen (1989) 168 CLR 79. Before us, the Crown accepts that what has now become known as a Longman direction was called for in the present case. No doubt it is a Longman direction which his Honour set out to give. The only question for us is its adequacy in the circumstances of this case. 7 Longman was recently revisited by the High Court in Crampton v The Queen (2000) 176 ALR 369 and Doggett v The Queen (2001) 182 ALR 1. It must be said that the High Court's decision in Crampton was very recent at the time of the trial the subject of this appeal and, of course, that Court's decision in Doggett was yet to be given. 8 Those High Court decisions, together with some decisions of this Court, were reviewed by Sully J in his comprehensive judgment in Regina v BWT [2002] NSWCCA 60. Relevantly for present purposes, his Honour expressed his conclusions following that review as follows: "It seems to me to be a reasonable inference from what their Honours have said that all the current Justices of the High Court, excepting the Chief Justice and McHugh J, take the basic position that in any criminal trial a feature of which is substantial delay in complaint of alleged sexual offences then charged against the particular accused, a Longman direction must be given. Not only must the direction be given; but it must be cast in a form that manifests, and is seen plainly to manifest, certain characteristics which one can draw, as follows, from the various statements of principle in Longman itself and in the subsequent decisions in Crampton and in Doggett . (a) The direction must be cast in the form of a warning . Any form of expression which is thought to have the character of a comment , or even of a caution will not sufficiently comply with what is required by law. It seems to me to follow that any trial Judge who is framing a Longman direction ought to ensure that the direction is framed, in terms, as a warning . (b) That which is to be warned against is, to return to the majority judgment in Longman itself : ' that, as the evidence of the complainant could not be adequately tested after the passage of [the particular period relevant in the particular trial], 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'. The approach of the majority Justices in both Crampton and Doggett seems to me to entail that a trial Judge who is framing a Longman direction must ensure that the final form of the direction to the jury covers in terms the following propositions: first , that because of the passage of time the evidence of the complainant cannot be adequately tested; secondly , that it would be, therefore, dangerous to convict on that evidence alone; thirdly , that the jury is entitled, nevertheless, to act upon that evidence alone if satisfied of its truth and accuracy; fourthly , that the jury cannot be so satisfied without having first scrutinised the evidence with great care; fifthly , that the carrying out of that scrutiny must take into careful account any circumstances which are peculiar to the particular case and which have a logical bearing upon the truth and accuracy of the complainant's evidence; and sixthly , that every stage of the carrying out of that scrutiny of the complainant's evidence must take serious account of the warning as to the dangers of conviction. (c) Not only must the substance of the warning be carefully and correctly focused, but the form of the warning, also, must be carefully and correctly framed. The form of the warning must be such as bears unmistakably the imprint of the Court's own authority. It must be made clear that the foundation of that authoritative warning of the Court itself is the accumulated experience of the Courts in dealing with cases characterised by substantial delay in the making of complaint about alleged sexual offences. It will be unwise, and more probably than not will be held upon appellate review to have been erroneous, to frame the warning in a way which suggests that what is being said conveys in essence nothing more than the common sense of the jurors would in any event have indicated. A ready example of that will be found in the trial directions in Crampton. (d) In framing the substance of a Longman direction, a Judge must keep in mind not only the guidance given by the joint judgment in Longman itself, but also the additional considerations to which reference was made in their respective judgments by Deane J and McHugh J." 9 It is immediately apparent that what his Honour said in the present case falls short of the requirements expressed by Sully J in that passage. His Honour did refer to the fact that the passage of time makes investigation more difficult for the defence, and while that aspect of the warning might have been expressed with greater emphasis and particularity, in the circumstances of this case what his Honour said there would not of itself persuade me that his direction as a whole was inadequate. 10 What does concern me, however, is that at no stage did his Honour warn the jury of the danger of convicting arising from the delay and the consequent need for careful scrutiny of the complainant's evidence. Nor did his Honour refer to the effect upon the reliability of the complainant's evidence of the delay, having regard to his relative youth. 11 True it is that the delay in this case is not as great as that found in some of the decided cases, in particular, Longman. True it is also that, over the relevant period, this complainant was somewhat older than the complainants in Longman and some of the other decided cases. Nevertheless, it appears to me that a direction concerning the effect of delay upon youthful recollection was called for. 12 It is that aspect in particular with which Deane and McHugh JJ dealt with in Longman. It is sufficient for present purposes to refer to McHugh J's judgment at page 108 of that report. For those reasons, I am satisfied, as I have said, that this ground of appeal is made out, and the matter has such significance as to require the convictions to be set aside. 13 Counsel for the appellant argued that the Court should enter verdicts of acquittal, rather than directing a new trial. In that regard, he referred to the fact that the trial the subject of this appeal was a second trial, there having been an earlier trial in which the jury acquitted on some counts, but was unable to agree on the others. He referred also to the fact that the appellant had been on bail from his arrest in March 1999 until his ultimately being found guilty in this trial in November 2000. Finally, he referred to the fact that the appellant has now served some fifteen months of the sentence imposed upon him by the trial judge in the present trial. 14 These are significant considerations, but they are not such as to persuade me that there ought not be a new trial. The appellant has not, in my view, served a sufficient portion of the effective sentence imposed upon him to justify the course of directing verdicts of acquittal, and the allegations here are serious. 15 Accordingly, the orders I propose are that the appeal be allowed, the convictions be quashed and a new trial be held. 16 HEYDON JA: I agree with Justice Hidden. 17 BLANCH J: I also agree. 18 HEYDON JA: The orders of the Court will be those which Justice Hidden has just proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.