this product is unavailable for purchase using a firm account, please log in with a personal account to make this purchase.

VLRC : Longman warnings under scrutiny

Every Issue

Cite as: Cite as: (2003) 77(4) LIJ, p.87

The VLRC is examining warnings to juries about the dangers of convicting in sexual offence trials.

The Victorian Law Reform Commission (VLRC) is continuing to work on a reference on sexual offences.[1] The focus of the reference is to review the types of legislative, administrative or procedural changes that might be necessary to ensure that the criminal justice system is more responsive to the needs of victims/survivors of sexual assault. One specific aspect of the project focuses on Longman warnings.

Prior to 1991 in Victoria, judges in sexual offences cases maintained a discretion to warn juries about the dangers of convicting an accused man on the uncorroborated statements of women complainants. The warning reflected the pervasive cultural suspicion which had become firmly entrenched within common law practice that women were prone to lie about sexual assault out of jealousy or spite or in order to deal with their own sexual indiscretions.

Section 61 of the Crimes Act 1991 (Vic) was specifically intended to prevent judges from ever giving corroboration warnings that effectively distinguished sexual assault victims as a particularly unreliable class of witness. However, some discretionary power remained for judges to comment on the reliability of evidence in a particular case if it was considered appropriate to do so in the “interests of justice”.

The High Court decision in Longman v The Queen[2] was consistent with the broad intention of the provisions that indiscriminate warnings about it being unsafe to convict an accused on the uncorroborated evidence of a sexual assault complainant was sexist and outdated. However, there was unanimous agreement that the provisions should not remove the requirement for judges to warn the jury of particular circumstances that could potentially result in a miscarriage of justice.

Longman was on trial for sexual offences against his step-daughter which were alleged to have occurred some 25 years prior to any disclosure. After his conviction, the New South Wales Court of Appeal affirmed the trial judge’s refusal to warn the jury about the dangers of convicting the accused on the basis of the significant delay in reporting the offences. In reviewing the decision, however, the High Court ruled that a warning was justified given the historical nature of the case, and especially as a result of the forensic disadvantage suffered by the accused in being able to prepare an adequate defence to the allegations. In particular, the High Court stated that juries would not necessarily be alert to the lost opportunities for an accused to gather information or evidence at the time had the allegations been made contemporaneously.

Longman has been re-affirmed by the High Court in the more recent cases of Crampton v R[3] and Doggett v R.[4] These cases effectively oblige trial judges to give strong corroboration warnings to juries about the dangers of convicting should the length of delay, the absence of corroboration or the potential forensic disadvantage suffered by an accused mean the interests of justice in the particular case would be seriously compromised.

Given the social context in which most sexual assaults occur (often in a private setting, by people well-known to the victim, where there are few, if any, physical signs which could confirm what happened), it was inevitable that defence barristers would argue that the circumstances of the “particular case” could be said to exist in a high proportion of cases going to trial, especially where there has been some delay in making the allegations.[5] While the warning falls short of directing the jury that they should find the accused not guilty of the offences, a strongly worded caution to the effect that it might be dangerous or unsafe to convict is likely to have a significant impact on the jury’s deliberations.

As part of its reference on sexual offences, the VLRC has been considering potential avenues for reforming s61 to narrow the circumstances under which a strong Longman warning may be given to the jury. At this stage the VLRC is particularly concerned to remove the form of the warning to prohibit the use of the words “dangerous to convict”. The VLRC will also explore options for confining any warnings to circumstances where a “particular forensic disadvantage” can be demonstrated.

The VLRC’s interim report will consider these and other substantive and evidentiary issues. The interim report is scheduled to be tabled in this current session of Parliament.


Contributed by the VICTORIAN LAW REFORM COMMISSION, tel 8619 8619, website http://www.lawreform.vic.gov.au.

viclawreform@liv.asn.au


[1] See also October 2002 LIJ, p79, February 2003 LIJ, p85 and March 2003 LIJ, p81.

[2] (1989) 168 CLR 79.

[3] (2000) 176 ALR 369.

[4] (2001) 182 ALR 1.

[5] Melanie Heenan and Helen McKelvie, The Crimes (Rape) Act 1991: An evaluation report, Rape Law Reform Evaluation Project, Report No 2, 1997, Department of Justice, Melbourne. See also Melanie Heenan, Trial and Error: Rape, law reform and feminism, unpublished PhD thesis, 2001, Department of Sociology, Monash University.

Comments




Leave message



 
 Security code
 
LIV Social
Footer