R v Kesisyan [2003] NSWCCA 259

New South Wales Court of Criminal Appeal

CITATION : R v Kesisyan [2003] NSWCCA 259 HEARING DATE(S) : 03/09/03 JUDGMENT DATE : 3 September 2003

JUDGMENT OF : Meagher JA at 1, 24; Sully J at 18; Kirby J at 23 DECISION : Appeal dismissed.

CATCHWORDS : Longman directions - Purpose - Form and content - No specific form of words required - Credibility evidence - admissibility and relevance. Regina PARTIES : v Karabet Gary KESISYAN FILE NUMBER(S) : CCA 60191 of 2003 COUNSEL : A: G Jauncey R: P Miller SOLICITORS : A: P Murphy R: S E O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0753 FILE NUMBER(S) : LOWER COURT Holt DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL CCA 60191 of 2003

MEAGHER JA SULLY J KIRBY J

Wednesday, 3 September 2003 REGINA v KESISYAN Judgment 1 MEAGHER JA: This is an appeal by Mr Karabet against a conviction of indecent assault and sexual assault of a person over the age of ten years and under the age of sixteen years whilst under the authority of the prisoner. 2 The facts alleged by the complainant relate to sexual activity between her and the prisoner, the current appellant, who was her stepfather and which began when she was ten years old and continued for some years. The first alleged offence was committed in March or April 1989, or allegedly committed, then and the remaining set of charges concern offences allegedly committed between June 1984 and September 1992. There is no reason to go into their precise date or, indeed, the precise circumstances. There is no issue that if the events which were alleged did in fact take place, those various serious offences had in fact been committed. 3 The case for the appellant was simply that the facts alleged by the complainant were entirely false, for whatever reason. The trial proceeded and the jury convicted the appellant on every point. 4 There was a long and very careful charge to the jury by his Honour Judge Holt, but its sufficiency is now attacked by the appellant on his appeal. There were two grounds in which his Honour's directions are said to be in appellable error. The first of these is the so called Longman direction, which his Honour gave which is said to be insufficient. Exactly why it is insufficient, according to the appellant's submission, is not entirely clear. A great number of submissions were made about its apparent insufficiency, but many of them had to be withdrawn. 5 The point of the Longman's direction is simply to draw to the jury's attention, in a case where there is an allegation of sexual misconduct and a long period of delay between the event alleged and the time when complaint first reaches the ears of the authorities, is that the rights of the accused must not be prejudiced by the length of the delay. The delay must not, in other words, reach the stage where the accused is treated so unfairly that his right to have the jury consider the entire evidence, in order to decide whether or not he is guilty beyond reasonable doubt, remains unimpaired. 6 There are many and very obvious ways in which delay can threaten the fairness of the trial. Most of those are well known, and in the present case it is conceded that his Honour endeavoured to give a Longman direction and that, in fact, he very largely did, so that much is not in dispute. What ended up being in dispute was this: that his Honour did not draw to the jury's attention the age of the complainant at the time of the alleged offences. In my view, that is hardly a fair complaint as there was ample material before the jury by which they could have drawn exactly that. 7 Another complaint was that having informed the jury, at least indirectly, both of the age of the complainant at the time of the offences and of her age at the time of the complaint, there was no distinct warning as to the effect of the delay which had elapsed on the credibility of the complainant. Again, in my view, that is not a complaint which can be justified. His Honour went to great lengths to stress how important it was that the woman's evidence, if it were to be accepted by the jury, had to be both truthful and accurate. 8 No specific words are required in a Longman direction and as a long as the essential purpose of the direction is performed, that is all the judge needs to do. 9 A further complaint about his Honour's directions was a rather different one, namely, the fact that according to the complainant, she had made three complaints about the accused's activities; one to a friend of hers at school, a second one to a visiting Priest and thirdly, to her sister. Her evidence about what the complaints were, by which I mean the evidence about what exact words she used to each of these people, was very vague. As far as the Priest was concerned, the Crown was not able to locate him. 10 Bearing in mind that the case of the accused was that none of the events charged ever happened, logically, it must follow that the accused had to say that each of the supposed complaints never took place. In other words, the statement of the complaints had been made to each of those persons and the contents of the complaints were lies and what the appellant now complains of is that his Honour should, in terms, have told the jury that a lie, when once told, does not transmogrify itself into a truth by being repeated. If a lie is repeated, it still remains a lie. 11 With respect, that is such a startlingly evident proposition that, in my view, no jury need be told that. There is no reason why, on a matter like that, a judge should treat the jurors as if they were in fact lacking intelligence. But, more importantly, perhaps in the present context the point never seemed to occur to anyone before the appeal. The accused was represented at the trial by a perfectly experienced and able barrister who never sought to take that point when the trial was on. Indeed, more to that, the accused never took any Longman's point at the trial itself. 12 For those reasons, I think that his Honour's charge to the jury was perfectly adequate in all the circumstances and perfectly fair and no justified complaint can be made about it. 13 The second ground which was argued on behalf of the appellant is a rather more mysterious one. At the trial evidence was given by Dr Parker. The complainant had complained that there was an injury between her vagina and her anus and that this had been caused by the anal penetration by the accused of her. It was on that issue that the medical evidence was brought. Dr Parker said that he had examined her and such a condition did exist, but he could not say how long it had been there. He certainly could not say that it had been there for the length of time which, according to her evidence, it should have been there and he could not say what the cause of it was. It might have been caused by having been sodomised, it might have been caused by a great variety of other innocent causes. 14 The appellant's submissions seem to be that that evidence should not have been admitted, that his Honour should have refused to admit it. I cannot see on what basis this submission is made. All the evidence goes to is the credibility of the complainant's story and it does support that in an important aspect. It does not prove anything, but by proffering medical testimony of the complainant being in a state which is consistent with that complained of, seems to me to make the evidence admissible immediately. One can hardly refuse to admit it because the Crown might have wished the evidence to be stronger. The mere fact that it is relevant, although not conclusive, makes it admissible. 15 I cannot see on any basis how the judge could have ruled that it was inadmissible. Nor was any case made that whilst admissible, it was so prejudicial in its effect as to be unfair to the accused to admit it. 16 For those reasons, it seems to me that the second and final ground advanced by the appellant should be rejected. 17 In my view, the appeal should be dismissed. 18 SULLY J: I wish to add a brief comment of my own about ground one. I agree entirely with what the learned presiding Judge has said about ground two. I agree with the order proposed by his Honour. 19 The brief comment I wish to make about ground one derives from the fact that I was myself, as it happens, a member of the Bench of this Court which decided BWT. The Court, in that case, went to a great deal of trouble to spell out, for the guidance of primary Judges in criminal cases the practical effect, as the law now stands, of the various relevant decisions in the High Court of Australia, that is to say, the decisions in Longman, in Doggett and in Crampton. 20 His Honour, the learned presiding Judge offered a view as to the essential purpose of having a Longman direction at all. I respectfully agree in principle with what his Honour said in that regard. His Honour proceeded to the proposition that no set form of words is required in order to give an adequate Longman direction. I agree with that in the sense that BWT need not be understood as laying down an exact form of words, the failure of any part of which would necessarily vitiate the particular direction given in the individual case. 21 I think, however, that it needs to be emphasised that although that might be so, it is essential for trial Judges to ensure that the substance of what is conveyed by the relevant charge to the jury does, indeed, accord with the substance of the principles established by the decision in BWT; those principles having been set out in full, and by reference to the relevant portions of the judgment, in paragraph 13 of the written submissions put in for the appellant in the present case. 22 It is because I have come to the conclusion that what was, in fact, said in the charge to the jury in the present case does indeed catch in its substance the essential features of what was prescribed in BWT that I agree with the conclusion to which the learned presiding Judge has come with respect to count one of the present appeal. As I have said, I respectfully agree with the order proposed by his Honour. 23 KIRBY J: I also agree and I should add that I agree with the reasons given by the learned presiding Judge and the additional comments made by Sully J. 24 MEAGHER JA: The order of the Court, therefore, is that the appeal is dismissed.