Regina v LTP [2004] NSWCCA 109

Regina v LTP [2004] NSWCCA 109

The conviction on count 4 could not stand because admitted fresh evidence about birthday photographs meant the jury could not be satisfied beyond reasonable doubt that the alleged oral intercourse occurred in December 1986 rather than December 1985; if it occurred in December 1985, s 66A of the Crimes Act 1900 was not yet in force and oral intercourse was not carnal knowledge under the then law. The trial judge erred by failing to give a Kilby direction, but for count 5 the majority held that, in light of other warnings about caution and delay, the strong Crown case and the evidence as a whole, the error caused no substantial miscarriage of justice and the proviso applied. The Longman...

Jurisdiction
Australia
Judgment Date
01 July 2004
Procedural Posture
Criminal Appeal / Appeal Against Convictions and Application for Leave to Appeal Against Sentence From the District Court
Outcome
Appeal allowed on count 4; conviction and sentence on count 4 quashed and verdict of acquittal entered. Appeal against conviction on count 5 dismissed; leave to appeal against sentence on count 5 granted; sentence appeal allowed and sentence varied.
Legal Topics
['child Sexual Assault' 'delay in Complaint' 'kilby Direction' 'longman Warning' 'inconsistent Verdicts' 'onus and Standard of Proof' 'fresh Evidence' 'legislative Commencement of Offence' 'limiting Cross Examination' 'jones V Dunkel Direction' 'proviso' 'sentence Severity']
['criminal Law' 'evidence' 'sentencing'] ['child Sexual Assault' 'delay in Complaint' 'kilby Direction' 'longman Warning' 'inconsistent Verdicts' 'onus and Standard of Proof' 'fresh Evidence' 'legislative Commencement of Offence' 'limiting Cross Examination' 'jones V Dunkel Direction' 'proviso' 'sentence Severity']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Convictions and Application for Leave to Appeal Against Sentence From the District Court

Legal Issues

  1. 1 ["Whether the trial judge failed to give an adequate direction that delay in complaint could be taken into account in assessing the complainant's credibility." 'Whether the Longman warning about disadvantages to the appellant caused by delay in complaint or prosecution was adequate.' 'Whether guilty verdicts on counts 4 and 5 were unreasonable, unsafe or inconsistent with acquittals on other counts.' 'Whether the trial judge misdirected the jury on the standard of proof.' 'Whether fresh evidence about birthday photographs meant the offence charged in count 4 could not be proved as having occurred when s 66A of the Crimes Act 1900 was in force.' 'Whether restrictions on cross-examination of the complainant about attempts to withdraw the complaint caused a miscarriage of justice.' 'Whether the defence was entitled to a Jones v Dunkel direction concerning absent Crown evidence about statements by the complainant.' 'Whether the sentence imposed on count 5 was excessive.']

Ratio Decidendi

The conviction on count 4 could not stand because admitted fresh evidence about birthday photographs meant the jury could not be satisfied beyond reasonable doubt that the alleged oral intercourse occurred in December 1986 rather than December 1985; if it occurred in December 1985, s 66A of the Crimes Act 1900 was not yet in force and oral intercourse was not carnal knowledge under the then law. The trial judge erred by failing to give a Kilby direction, but for count 5 the majority held that, in light of other warnings about caution and delay, the strong Crown case and the evidence as a whole, the error caused no substantial miscarriage of justice and the proviso applied. The Longman...

Court Disposition

Appeal allowed on count 4; conviction and sentence on count 4 quashed and verdict of acquittal entered. Appeal against conviction on count 5 dismissed; leave to appeal against sentence on count 5 granted; sentence appeal allowed and sentence varied.

Orders

  • ['As to count 4: appeal allowed.' 'As to count 4: conviction and sentence quashed.' 'As to count 4: verdict of acquittal entered.' 'As to count 5: appeal against conviction dismissed and conviction confirmed.' 'As to count 5: grant leave to appeal against sentence.' 'As to count 5: allow the appeal and quash the...