Regina v BKK [2001] NSWCCA 525

Regina v BKK [2001] NSWCCA 525

The convictions on counts one to five could not stand because those counts concerned earlier alleged sexual misconduct which the appellant denied, occurred after substantial delay, and required a Longman direction to alert the jury to possible forensic prejudice; the directions given did not provide that assistance and the proviso was not applied. Counts six to thirteen were different because the appellant did not dispute sexual intercourse and contested absence of consent in relation to more recent events, so no Longman direction was required for those counts. The remaining complaints about lack of representation, health, indictment confusion and jury directions did not show that the...

Jurisdiction
Australia
Judgment Date
14 December 2001
Procedural Posture
Criminal Appeal Against Convictions and Sentences for Sexual Offences / Appeal From Sydney District Court Convictions on Thirteen Counts and Sentences
Outcome
Appeal allowed in part; convictions and sentences quashed on counts one to five and a new trial ordered; sentences on counts six to thirteen quashed and remitted to the District Court for sentence according to law.
Legal Topics
['sexual Assault' 'delay and Forensic Prejudice' 'longman Direction' 'unrepresented Accused' 'fair Trial' 'illness of Accused During Trial' 'complaint Evidence' 'corroboration' 'character Evidence' 'failure of Accused to Give Evidence' 'consent']
['criminal Law' 'criminal Procedure' 'evidence' 'sentencing'] ['sexual Assault' 'delay and Forensic Prejudice' 'longman Direction' 'unrepresented Accused' 'fair Trial' 'illness of Accused During Trial' 'complaint Evidence' 'corroboration' 'character Evidence' 'failure of Accused to Give Evidence' 'consent']

Case Brief

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Procedural Posture

Criminal Appeal Against Convictions and Sentences for Sexual Offences / Appeal From Sydney District Court Convictions on Thirteen Counts and Sentences

Legal Issues

  1. 1 ['Whether the trial judge was required to give a Longman direction because of delay in relation to some or all counts.' 'Whether the absence of a Longman direction required convictions to be quashed, and whether any error affected only some counts.' "Whether the appellant's absence of legal representation made the trial unfair." "Whether the appellant's health prevented him from fairly conducting the trial or making decisions about giving or calling evidence." 'Whether there was substance in the complaint about confusion in the indictment naming the victim.' "Whether the trial judge erred in directions on complaint, corroboration, character, the appellant's failure to give evidence, and his failure to call evidence." 'Whether the sentences should stand after the partial success of the conviction appeal.']

Ratio Decidendi

The convictions on counts one to five could not stand because those counts concerned earlier alleged sexual misconduct which the appellant denied, occurred after substantial delay, and required a Longman direction to alert the jury to possible forensic prejudice; the directions given did not provide that assistance and the proviso was not applied. Counts six to thirteen were different because the appellant did not dispute sexual intercourse and contested absence of consent in relation to more recent events, so no Longman direction was required for those counts. The remaining complaints about lack of representation, health, indictment confusion and jury directions did not show that the...

Court Disposition

Appeal allowed in part; convictions and sentences quashed on counts one to five and a new trial ordered; sentences on counts six to thirteen quashed and remitted to the District Court for sentence according to law.

Orders

  • ['The appeal be allowed in part.' 'The convictions and sentences on counts one to five of the indictment be quashed and a new trial ordered in respect of such counts.' 'The sentences in respect of counts six to thirteen be quashed and the matter of sentence in respect of those counts remitted to the District Court...