New South Wales Court of Criminal Appeal CITATION : R v JBV [2002] NSWCCA 212 FILE NUMBER(S) : CCA 60558/00 HEARING DATE(S) : 3 June 2002 JUDGMENT DATE : 3 June 2002 PARTIES : Regina v JBV JUDGMENT OF : Heydon JA at 1, 25; Hidden J at 23; Blanch AJ at 24 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/2100 LOWER COURT JUDICIAL Keleman DCJ OFFICER : COUNSEL : P G Ingram (Crown) H Dhanji (Appellant) SOLICITORS : S E O'Connor (Crown) D J Humphreys (Appellant) CATCHWORDS : Criminal law - indecent assault - complainant aged between four and eleven years at time of alleged incidents - delay in complaint - 'Longman' direction - whether jury adequately warned of danger in convicting appellant because of danger of mistaken recollection and forensic disadvantage to appellant due to delay in complaint - whether conviction erroneous - scope of principle in Longman v R (1989) 168 CLR 79 Crampton v R (2000) 176 ALR 369 CASES CITED: Longman v R (1989) 168 CLR 79 R v BWT [2002] NSWCCA 60 DECISION : The convictions and sentences are quashed; in lieu of the convictions, verdicts of acquittal on charges 1, 2, 4 and 5 are substituted. IN THE COURT OF CRIMINAL APPEAL 60558/00 HEYDON JA HIDDEN J BLANCH J 3 June 2002 REGINA v JBV Judgment 1 HEYDON JA: The appellant appeals against his convictions by a jury after a trial before Keleman DCJ, QC, lasting eight days, on 27 March 2000 on the following four counts: "1. For that he in about September 1977, at Iluka in the State of New South Wales, did assault a female … and at the time did commit an act of indecency upon her, she being then under the age of sixteen years. 2. Further, that between about 22 February 1979 and 23 February 1981, at Iluka in the State of New South Wales, did attempt to carnally know [a female], she then being under the age of ten years. 4. Further, that between about 22 February 1982 and 23 February 1984, at Iluka in the State of New South Wales, did assault [a female] and at the time did commit an act of indecency upon her, she being then under the age of sixteen years. 5. Further, that between about 1 December 1984 and 1 February 1985, at Iluka in the State of New South Wales, did assault [a female] and at the time did commit an act of indecency upon her, she being then under the age of sixteen years." 2 The appellant also seeks leave to appeal against sentence. The sentences were as follows. On count 2 the appellant was sentenced to imprisonment for two years and six months commencing on 18 August 2000 with a non-parole period of one year expiring on 17 August 2001. On count 1 the appellant was sentenced to imprisonment for one year commencing on 18 August 2000. On counts 4 and 5 he was sentenced to imprisonment for a term of six months commencing on 18 August 2000. Background 3 The trial judge in his remarks on sentence said he was satisfied of the following facts. "Each of the counts involved sexual acts committed upon the prisoner's granddaughter when she visited her grandparents who resided in a northern New South Wales coastal town. The offences were committed over a period of about seven and a half years commencing in September 1977 when the complainant was about four and a half years of age, and concluding in the Christmas holidays at the end of 1984, when she was eleven years of age. The offences charged were not isolated occurrences but were committed against a background of other sexual acts committed by the prisoner on the complainant whenever she visited her grandparents at least once per year over this period of some seven years. The first count involved an indecent assault on the complainant when she was four and a half years old. This was the first occasion the prisoner committed a sexual act upon the complainant. The complainant was visiting her grandparents with her older sister while her parents were overseas. They were all out in the backyard when she followed the prisoner into the rumpus room where the prisoner, while the complainant stood on a chair or lounge, placed his hand inside her shorts and underpants and rubbed her vagina. The prisoner then sat her down and placed his penis into her mouth and then rubbed her vagina again. The prisoner did not move his penis while it was inside her mouth. However it remained there for a few minutes. The second count of attempt carnal knowledge related to an incident when the complainant was six or seven. She was standing on one of the chairs in the rumpus room and the prisoner rubbed her vagina. He then took his penis out and started rubbing his penis on her vagina and tried to push his penis into her vagina while her feet were apart and her shorts and underpants were pulled forward and slightly down. When the complainant whimpered because of the pain he desisted and then rubbed her vagina again with his penis. While I am not satisfied to the requisite standard that the prisoner intended to insert his penis fully or to a substantial extent into the complainant's vagina, I am satisfied beyond reasonable doubt, consistently with the jury's verdict that in pushing his penis against the complainant's vagina, while he did not penetrate the complainant's vagina, the prisoner was intending to insert his penis at least to some extent into the complainant's vagina. The fourth count involved an indecent assault on the complainant when she was nine or ten in the Christmas holidays when she was visiting her grandparents with her family and other relatives. The whole extended family went on a walk after dinner one night and as they were walking back and close to home the prisoner said quietly to the complainant 'Let's beat everyone back' and then more loudly 'Come on, I will race you home'. The complainant and the prisoner then ran ahead of the group who continued to walk. When the prisoner and complainant reached the house they went into the rumpus room and while the complainant was on a chair the prisoner put his hands down her shorts and underpants, pulled his penis out of his shorts and rubbed it near her vagina. The prisoner stopped doing this when they heard the others returning and the prisoner and the complainant hid behind a wall and surprised her father as he came into the house. The fifth count involved an indecent assault on the complainant when she was 11. She was sitting on a stool near the bar in the rumpus room packing some of her personal items when the prisoner came into the rumpus room from the backyard and said to the complainant 'Last time before you go'. The prisoner then put his hand inside her shorts and underpants and rubbed her vagina while he leaned against her leg rubbing his unexposed penis against it. This incident lasted for five minutes. The complainant and her family left her grandparents home that afternoon or the next day and that was the last occasion the complainant ever visited her grandparents. The complainant went to police in November 1996 and in a recorded interview with police in May 1997, the prisoner denied each of the allegations made by the complainant and he denied committing any sexual acts upon the complainant. The prisoner gave evidence in the trial and made similar denials. The jury clearly rejected those denials." First ground of appeal: Longman direction 4 Ground 1 is: "There was a miscarriage of justice as a result of the learned trial judge's failure to adequately warn the jury of the danger in convicting the appellant on the evidence of the complainant, in that: a) The trial judge failed to warn of the danger of mistaken recollection; and b) The trial judge failed to adequately instruct the jury as to forensic disadvantage suffered by the appellant due to the delay." 5 The part of the summing up which the appellant criticises is as follows: "As there is no other evidence either from the Crown witnesses or from any other source including the accused's record of interview that is capable in law of confirming the truthfulness of the complainant's evidence in respect of the five charges in the indictment, and given the circumstances that are relevant to the evaluation of the complainant's evidence, I am required to give you a warning, that the evidence of the complainant may be unreliable and it would be dangerous to convict the accused on the complainant's evidence unless you, the jury, after scrutinising the evidence of the complainant with great care, considering the circumstances relevant to its evaluation and paying heed to this warning were satisfied beyond reasonable doubt of the truth and accuracy of the complainant's evidence in respect of each of the charges in the indictment. The circumstances relevant to the evaluation of the complainant's evidence include: 1) The absence of evidence of complaint, and although there may be good reasons why a victim of sexual assault may hesitate or refrain from making a complaint, the absence of complaint might in the circumstances indicate the complainant's allegations are false. 2) The complainant did not disclose to police the allegations against the accused until 1996. The accused was not interviewed by police until May 1997, some 20 years after the first allegation in time and some 12 years after the last allegation in time. This delay has caused the accused great difficulties in the conduct of his defence. After such a long period of time it would be impossible for him to identify the particular day and the time of day the sexual conduct alleged against him is alleged to have occurred and obtain evidence that nothing untoward happened. The incidents are alleged to have occurred in areas that were accessible to others and when others were nearby. In addition the accused after such a long period of time, and further because of his age, could hardly be expected to remember his movements on particular days and what happened on those days. The accused has been deprived because of a lapse of such a long period of time of being able to support his evidence with adequate details and witnesses. The accused would accordingly experience great difficulty in defending himself and may not be able to adequately defend himself by reason of this delay." 6 Those remarks were made very near the end of the summing up. At the end of it the trial judge asked counsel if there were any matters of fact or law which called for further directions. Each counsel said there was not. 7 In Crampton v R (2000) 176 ALR 369 the majority, after quoting passages from the judgments of the majority, of Deane J and of McHugh J in Longman v R (1989) 168 CLR 79 at 90-1, 95-6 and 108-9, said that in Crampton v R a direction should have been given to the jury along the lines indicated by the majority in Longman v R and also said that the trial judge should have drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman v R. Those additional considerations were summarised as including "the fragility of youthful recollection, the absence of a timely complaint (subject to any reasonable explanation therefor) and the possibility of distortion." The majority in Crampton v R had earlier said (at [42]) that it was not necessary in that case to explore the significance of any differences that there were between the reasoning of the majority, of Deane J and of McHugh J. 8 There were broad factual similarities between Crampton v R and the present case: the complainant there was also very young (in year 6) at the time of the alleged offences, the first complaint was about 19 years later, the trial took place about 20 years later, and there was no independent confirmation of the complainant's evidence. 9 The appellant relies on the reasoning of the majority in Crampton v R and their adoption of the reasoning of Deane J and McHugh J in Longman v R. 10 The appellant submits, first, that the trial judge should have warned the jury of "the fragility of youthful recollection" and "the possibility of distortion". The appellant points out that the complainant was approximately 4½ years old at the time of the alleged events relating to the first count, between 5 and 8 at the time of the alleged events relating to counts 2 and 3, between 8 and 11 at the time of the alleged events relating to the fourth count, and 11 at the time of the alleged events relating to the last count. She was 27 at the time of the trial. The delay from the time of the first count was over 22 years. The delay from the time of the last count was 15 years. The appellant submitted that the cross-examination of counsel for the Crown appearing at the trial, and the summing up, posed the issue as to whether the complainant was deliberately not telling the truth or not: questions of innocent mistake were excluded. 11 It was common ground that the circumstances called for a Longman warning. However, the Crown submitted that any difficulties to do with the recollection of the complainant and its possible distortion had been the subject of adequate directions in the summing up in places other than that quoted above. At page 8 the trial judge said: "You will next have to consider how well that observation or hearing has been retained by the witness between then and now. Some witnesses have better recollections than others. The passage of time may diminish a witness's recollection. Some things we see or hear are of such a nature that we are likely to retain an accurate recollection of them throughout the rest of our lives. At the other extreme some things are so trivial or at the time so unimportant to us, that we are unlikely to remember them accurately for very long at all." At page 11 he said: "One final comment I make in this regard, and when you think about it, it is self evident. It is that anyone may be thoroughly and absolutely honest, but be nonetheless at the same time totally wrong." At page 22 he said: "The Crown case in respect of each of the five charges in the indictment depends entirely upon the evidence of the complainant. There is no other evidence either from Crown witnesses or any other source that is capable of confirming or providing independent support for the evidence of the complainant in respect of the particular conduct relied upon to constitute each of the five charges alleged against the accused. The accused denied that any acts of a sexual nature occurred between himself and the complainant, accordingly you must approach the complainant's evidence with considerable caution and you should scrutinise her evidence with the greatest of care." 12 The Crown submitted that those words identified the substance of the points made by Deane J and McHugh J in Longman v R as required by Crampton v R. 13 The Crown submitted that the jury would have listened to that direction and interpreted it as applicable to the particular circumstances of the complainant, being then a twenty-seven year old dealing with events up to twenty-two years earlier. The Crown submitted that the jury would have been able to gather from the trial judge's direction that there was a particular problem in relation to the possible fragility of the recollection of the complainant when giving evidence of those events. 14 In R v BWT [2002] NSWCCA 60, after a detailed analysis of the authorities, Sully J at [95](3)(d) said that in framing the substance of a Longman direction it was necessary to keep in mind the matters referred to by Deane J and McHugh J. If those matters are to be kept in mind, it follows that normally the direction should refer to the specific dangers identified. The trial judge referred to the impact on recollection of the passing of time, but he did not refer specifically to the fact that "the recollection of events occurring in childhood … is frequently erroneous and liable to distortion by reason of various factors", to use the words of McHugh J in Longman v R (1989) 168 CLR 79 at 108 (the emphasis is added). For that shortly stated reason the summing up was defective. 15 That conclusion is not intended to be critical of either trial counsel or the trial judge. His summing up is extremely difficult to criticise in the light of the law as it stood at the time of the trial which was before Crampton v R was decided. At that time, it was not unreasonable to perceive the point of view expounded by McHugh J as having been a minority one. The summing up represented an earnest attempt to apply the majority reasoning in Longman v R, and to do so in the stark terms of a warning required by law with the authority of the judicial office behind it, as called for by the latest High Court cases. The trial judge's task was not made easier by the fact that neither counsel asked for any corrected direction corresponding with McHugh J's reasoning. The fact that they did not do so indicates that their opinion of what the law then required corresponded with that of the trial judge. The failure of counsel for the appellant to have asked for the direction which it is now said ought to have been given means that leave is needed under rule 4 of the Criminal Appeal Rules, but it must be granted in view of the importance ascribed by the High Court to compliance with Longman v R, in view of the fact that there was obviously no tactical reason why the warning was not sought and in view of the fact that it is reasonably possible that the warning which was not given could have caused the jury to experience a reasonable doubt. This is an example of a case which reveals the difficulties for trial counsel and trial judges when there is a change in the law, or at least in particular emphases in the law, after the trial but before an appeal. 16 The appellant also submitted that the trial judge failed adequately to direct the jury as to the forensic disadvantages suffered by the appellant due to the delay and in particular failed adequately to deal with the difficulties of testing the complainant's allegations by cross-examination. The merits of that contention are questionable, but in view of the appellant's success in relation to the first point raised it is not necessary to consider them. Balance of grounds 17 Since Ground 1 succeeds, it is not necessary to consider Grounds 2 and 3, or the application for leave to appeal against sentence. The Crown made no submission that the proviso should be applied. New trial? 18 The trial miscarried by reason of an error in directions. Often an error of that kind will not justify an acquittal and will only lead to a new trial. The appellant submits that there ought not to be a new trial and makes the following points. Twenty one and a half months have passed since the appellant was sentenced to thirty months' imprisonment. He served three months of the sentence before appealing. I interpolate that the Crown submits that service by the appellant of about three months of a thirty month sentence could not be regarded as service of a significant portion of his sentence. The Crown argues that the case is not comparable to one where an appellant has served the vast bulk of whatever sentence was imposed. The argument of counsel for the appellant continued along the following lines. The period spent by the appellant on bail after being granted bail pending the hearing of this appeal was a more difficult time for him than would have been the time spent at liberty had he served the first twelve months of his sentence and then gone on parole. Throughout the period from about November 2000, he has had the uncertainty of his fate hanging over him. It is pointed out that the prospect of re-offending is non-existent. The Court's attention was drawn by reference to what the trial judge said in his sentencing remarks. He set out various respects in which the appellant, who was then aged 77, was in bad health. Some of these were physical – cardiac difficulties, cerebral difficulties and severe dermatitis. Some were mental – dementia and depression. In addition, the trial judge noted that if the appellant were separated from his wife she would suffer hardship in several ways. 19 Two medical reports of recent date were tendered on the hearing of the appeal. 20 One report states that the appellant is not cognitively fit to instruct legal representatives. The other states that the appellant suffers from giddiness, poor short term memory, dementia, poor frontal lobe function, paranoia and hallucinations. His painful dermatitis continues. He has diverticulitis, reflux, heart disease, cerebrovascular disease and depression. 21 The factors pointed to by the appellant, particularly the stress which he would have been under even after the time when bail was granted, and the medical matters, are powerful discretionary reasons against ordering a new trial and are in favour of an order of acquittal and in those circumstances a new trial should not be ordered. Orders 22 The following orders are proposed. 1. The convictions and sentences are quashed. 2. In lieu of the convictions, verdicts of acquittal on charges 1, 2, 4 and 5 are substituted. 23 HIDDEN J: I agree. 24 BLANCH J: I also agree. 25 HEYDON JA: The orders are as I 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.