REGINA v PERCIVAL [2003] NSWCCA 409

New South Wales Court of Criminal Appeal

CITATION : REGINA v PERCIVAL [2003] NSWCCA 409 HEARING DATE(S) : 18/12/03 JUDGMENT DATE : 18 December 2003

JUDGMENT OF : Sully J at 1; Greg James J at 25; Adams J at 2 DECISION : Appeal upheld; conviction quashed; verdict of acquittal entered.

CATCHWORDS : Conviction appeal - sexual assault - effect of long delay - sufficiency of directions - conviction quashed LEGISLATION CITED : Criminal Appeal Act 1912 s8 Crampton v The Queen (2000) 206 CLR 161 Doggett v The Queen (2001) 208 CLR 343 CASES CITED : Longman v The Queen (1989) 168 CLR 79 R v Johnston (1998) 45 NSWLR 362 The Queen v BWT (2002) 54 NSWLR 241 The Queen v Murray (1987) 11 nswlr 12 PARTIES : Regina v Kevin Ernest Percival (Appellant) FILE NUMBER(S) : CCA 60335/03 COUNSEL : E Wilkins (Crown) R Hulme SC (Appellant) SOLICITORS : S O'Connor (Crown) S Kavanagh (Appellant)

LOWER COURT District Court JURISDICTION : LOWER COURT 00/21/3228 FILE NUMBER(S) : LOWER COURT Hock DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL

60335/03

SULLY J GREG JAMES J ADAMS J THURSDAY 18 DECEMBER 2003 REGINA v KEVIN ERNEST PERCIVAL JUDGMENT

1 SULLY J: Adams J will give the first judgment.

2 ADAMS J: The first judgment is in relation to the complaint of SW. The appellant stood trial in the District Court on two counts of indecent assault that allegedly occurred upon the complainant, who was born on 17 July 1975, between 17 July 1985 and 31 December 1985. The counts were in the following terms: "On a day between 17 July 1985 and 31 December 1985, at Busby in the State of New South Wales, did assault (SW), and at the time of the assault, did commit an act of indecency upon her, she then being a person under the age of sixteen years, namely, ten years of age." "On a day between 3 April 1972 and 2 April 1974 at Guildford in the State of New South Wales, did carnally know (TR), a girl then of or above the age of ten years, and under the age of sixteen years, namely, ten or eleven years of age." 3 The trial occurred at the end of May 2001 and the convictions on both counts returned on 1 June 2001. It is evident that there was a lengthy delay of sixteen years between the alleged offence and the trial. The complaint was first made on 24 April 1997 to police officers who did not interview the appellant until 10 January 1998. 4 As is often the case, the evidence for the prosecution was, in substance, the uncorroborated testimony of the complainant. The appellant had made a statement to the police which contained a number of details but, in substance, denied the truth of the allegations. 5 Accordingly, the jury were left with the evidence of the complainant that the crimes occurred and the statement of the appellant that they did not. The question, of course, for the jury came down to whether or not they were persuaded beyond reasonable doubt of the truth of the charges or, to put it in another way, whether it was reasonably possible that the appellant had not committed the offences. 6 It is clear from what I have already said that it was necessary for the judge to explain to the jury the considerations which arose by virtue of the delay. It is unnecessary for me to do more than to refer in this respect to the decision of this Court in The Queen v BWT (2002) 54 NSWLR 241 which applied the law as it had been articulated in the High Court of Australia in a number of decisions commencing with Longman v The Queen (1989) 168 CLR 79. The judgment in BWT was given after the trial in this case but, of course, Longman had been decided well before. 7 On 31 July 1998 this Court in R v Johnston (1998) 45 NSWLR 362 returned to the issues addressed in Longman. The High Court of Australia itself returned to the question in Crampton v The Queen (2000) 206 CLR 161 on 23 November 2000 which, as Sully J demonstrates in his judgment in BWT, added to the discussion in Longman some additional gloss and refinement. If I may say so his Honour's judgment summarised the position and subsequent discussion in Doggett v The Queen (2001) 208 CLR 343 with complete accuracy. I do not propose to set out the statement of principle distilled by his Honour and agreed by the other members of that Bench. It is sufficient for present purposes to note that the jury must be informed that delay does create a significant forensic handicap for the defendant both in terms of adequately testing the evidence of the complainant or, for that matter, any other witness recounting events that allegedly occurred a long time ago and also in relation to mounting a positive case. 8 In this case her Honour's directions in relation to this matter were as follows: "Further, in this case there are matters which of course you need to take into account when considering and assessing the complainant's evidence and whether you can rely upon it to the appropriate degree necessary. The allegations of course relate to incidents which are said to have occurred approximately fifteen years ago and when the complainant was ten years of age. She was of course giving evidence of matters which she alleges occurred when she was very young and you would be aware of the problems that may be associated with evidence of a person in relation to events which occurred a long time ago. Another matter you should be conscious of is that the delay in these allegations being raised with the authorities may have resulted in substantial difficulties in the accused defending himself. By reason of the delay, he may have been deprived of the opportunity of bringing forward witnesses who could indicate that the specific allegation could not have occurred on the dates for example. Had there been no delay in these allegations, the accused may have been able to produce material which would indicate to you that what the complainant said or is saying could not possibly be true in respect of one or other of the allegations. Of course you are perfectly entitled to convict on the evidence of the complainant, SW because if that were not the case, none of us would be here today. But because of those matters that I have outlined to you members of the jury, I must give you this warning. It would be dangerous to convict on the evidence of [SW] alone unless after scrutinising it with great care and paying heed to this warning you are satisfied of the truth and accuracy of her evidence." 9 It will be seen that the learned trial Judge did not advert to the difficulty facing the appellant in adequately testing the evidence of the complainant. Although I say "difficulty facing the appellant", it is a difficulty which the jury must face in assessing the reliability of the complainant's evidence. Although the direction points out that the delay "may have resulted in substantial difficulties", (emphasis added) the proper direction, in my view, should have said, in substance, that it did create difficulties for the accused in defending himself and that he was, as distinct from may have been, deprived of an opportunity of bringing forward any additional witnesses. 10 An additional problem with the direction is that her Honour suggested to the jury that the accused may have been prevented from leading evidence which demonstrated that it was "impossible" that the complainant's account was true. This considerably misstates the forensic task facing the appellant and the proper way of approaching the evidence in the trial. 11 In the circumstances here, it is almost inevitable that there could never have been a witness who would have been able to give evidence which established that the complainant's account "could not possibly be true". The jury, following that direction, would quite rightly have dismissed that likelihood as being a consideration they needed to bear in mind. 12 The correct direction should have adverted to evidence which may have given rise to a reasonable doubt, pointing out, of course, that it was no part of the responsibility of the appellant to adduce such evidence. A wide range of evidence could give rise to a reasonable doubt and it would almost invariably be this kind of evidence, the potential existence of which the jury should bear in mind in assessing the danger of convicting an accused person upon the uncorroborated account of a complainant given after a long delay. 13 Regrettably, counsel neither for the Crown nor for the defence sought to correct her Honour's direction. I wish to re-emphasise the importance of counsel considering carefully directions given to the jury with a view to assisting the court to correct any errors and avoid the necessity for appeal to this Court. The Crown should be astute to ensure that there is no error even if the error appears to favour the Crown case. I do not, by these words, suggest that the Crown Prosecutor's silence in the present case was tactical but I find it difficult to understand how the direction could be given here without applications either by the defence or the Crown Prosecutor. 14 It follows that the conviction must be quashed. The question is whether there should be a new trial. 15 A number of matters indicate that the Crown case was far from overwhelming. I have already mentioned that, necessarily, the prosecution relied upon the sole evidence of the complainant, and that that evidence had to be evaluated in accordance with what I might conveniently call a Longman direction and in accordance with The Queen v Murray (1987) 11 NSWLR 12. 16 The complainant said that there was nothing to distinguish the second charged incident from any other of a number of uncharged incidents, evidence of which was tendered as context. There were significant inconsistencies between her evidence and the statement that she had originally made to police and evidence given by her on committal. Her explanation for these inconsistencies was, in substance that her memory had improved. 17 This highlights the difficulty in testing the reliability of the complainant's evidence not only in the trial in relation to which the conviction has been quashed but in respect of any new trial. It would be necessary for her to be cross examined as to these inconsistencies and perhaps any other inconsistency with the real risk that again memory will have improved, emphasising the problematical nature of the case which the Longman direction is designed to deal with. 18 The complainant said for the first time that she had complained after the second incident to her sister and that this was by way of differentiating the two incidents and reinforced her memory that there were indeed two incidents rather than only one. Her sister was not called. The identification of the appellant was based upon relatively slight opportunity for this to be done. 19 The offences were allegedly committed in the immediate proximity of two other children and in the general proximity of a house full of people, none of whom are, for all practical purposes, available in the sense that they can be expected to give evidence about events that occurred so long ago. 20 The dates upon the alleged offences were committed were also significantly varied in the course of the proceedings and ultimately, it seems to me, left uncertain in a way that underlines the Longman problem. 21 In the end, I am unpersuaded that a new trial will overcome the problems to which I have adverted. Indeed, I think that it is likely that these problems will become even more marked. It may well be, of course, having regard to these matters, that a jury would conclude that the Crown has not proved the case beyond reasonable doubt and the strength of the Crown case will always be a material factor in the determination under s8 of the Criminal Appeal Act 1912 whether a new trial should be ordered. 22 In the result, I am not persuaded that this is a case where the administration of justice is properly served by a new trial and, accordingly, I would not make such an order. 23 I propose that this court order that the appeal be upheld, the conviction be quashed and a verdict of acquittal entered. 24 SULLY J: I agree. 25 GREG JAMES J: I also agree. 26 ADAMS J: This is my judgment in relation to the matter involving the complainant TR who was born on 3 April 1962. 27 The appellant was tried in the first week of June 2001 on one count of carnally knowing a girl between the age of ten and sixteen years between 3 April 1972 and 2 April 1974. It is obvious, therefore, that there was a very substantial delay indeed between the alleged offences and trial. 28 The complaint was first made on 11 March 1999 and the appellant was informed of the allegations in early June 1999.