Citation: R v Maxwell Raymond Barry [1999] NSWCCA 453
Court: NSW Court of Criminal Appeal
Date: 17 September 1999
Judge(s): Foster AJ (primary judgment); Newman J; Studdert J
Background
The applicant sought leave to appeal against an interlocutory decision of Judge Flannery QC in the District Court, delivered on 9 March 1999. His Honour had refused an application by the accused to permanently stay two counts on a proposed indictment alleging homosexual intercourse with a male aged sixteen or seventeen years at Brighton-le-Sands between October 1985 and September 1986.
The prosecution was brought under provisions of the Crimes Act 1900. The complainant was born on 10 September 1968, meaning the charges concerned conduct alleged to have occurred before he turned eighteen. The accused argued in the District Court that the prosecution was bound to fail, and the trial judge disagreed.
Legal Issues
- Whether leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 should be granted against the interlocutory refusal of a permanent stay.
- Whether the District Court erred in finding that the prosecution was not "foredoomed to fail" due to imprecision in the complainant's evidence about relevant dates.
- Whether confusion between the applicable provisions of the Crimes Act 1900 (s 79 and s 78K) would render the prosecution unsustainable.
Decision
The Court of Criminal Appeal confirmed that leave to appeal against interlocutory and discretionary decisions should not readily be granted. To succeed, an applicant must show error of principle, failure to consider relevant matters, consideration of irrelevant matters, or a finding of fact that was simply not open. A fresh hearing on the merits is not available.
Foster AJ found that Judge Flannery had correctly applied the applicable legal principles. The trial judge had asked whether the prosecution was "foredoomed to fail" (the test drawn from Walter v Gardiner) and had acknowledged that a permanent stay is available only in the most exceptional circumstances (per Deane J in Jago v District Court). No error of principle was identified.
On the question of evidentiary imprecision, the Court noted that while the complainant's evidence about dates contained some uncertainty, corroborating material was available. Independent evidence placed the accused at the Brighton-le-Sands address during the relevant period, and the complainant had consistently maintained the conduct did not continue after he turned eighteen. The trial judge's conclusion that the prosecution was not bound to fail was entirely open on the material before him.
On the question of which statutory provision applied, Foster AJ observed that s 78K came into force after 7 June 1984, and evidence from the Rental Bond Board suggested the accused moved into the Brighton-le-Sands premises after 16 October 1985. Any residual confusion between the two provisions could, in the Court's view, be resolved by appropriate directions at trial. This ground did not support a finding that the prosecution would inevitably fail.
Orders Made
- Leave to appeal refused.
Key Takeaways
- Leave to appeal against an interlocutory stay decision under s 5F(3) of the Criminal Appeal Act 1912 requires demonstrated error of principle or a finding of fact that was simply not open; the Court of Criminal Appeal will not conduct a rehearing on the merits.
- A permanent stay of criminal proceedings is available only in the most exceptional circumstances, and the applicable test is whether the prosecution is "foredoomed to fail."
- Imprecision in a complainant's evidence about dates does not automatically render a prosecution unsustainable where corroborating evidence is available from independent sources.
- Apparent confusion between two statutory provisions covering the same conduct at different periods does not in itself doom a prosecution, provided any ambiguity can be resolved through appropriate jury directions at trial.
- In dismissing the application, the Court affirmed that the trial judge's factual assessment of the stay application attracted significant deference, and no basis for appellate intervention had been established.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 78K and 79
- Criminal Appeal Act 1912 (NSW), s 5F(3)
Cases
- R v Matovski (1989) 15 NSWLR 720
- R v Ho, NSW Court of Criminal Appeal, unreported, 18 July 1994 (Mahoney JA)
- Walter v Gardiner (1992-93) 177 CLR 378
- Jago v District Court (1989) 18 CLR 23