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14
Court of Criminal Appeal 10 August 2000

Regina v Stringer

[2000] NSWCCA 293

Also reported as (2000) 116 A Crim R 198
Sexual offences
CRIMINAL LAW AND PROCEDURE STAY OF PROCEEDINGS SEXUAL OFFENCES ABOLITION OF OFFENCE BY STATUTE ABSENCE OF RETROSPECTIVE OPERATION CHARGES OF CONDUCT PRIOR TO LEGISLATION

Citation: Regina v Stringer [2000] NSWCCA 293
Court: NSW Court of Criminal Appeal
Date: 10 August 2000
Judges: Grove J, Adams J (dissenting), Smart AJ

Background

The respondent faced an indictment containing six counts of indecently assaulting a male person and two counts of buggery. The alleged conduct was specified to have occurred between December 1979 and December 1980. The complainant was born on 19 December 1962, meaning he turned 18 on the last day covered by the indictment's date range.

The legal significance of the dates was acute because, following legislative reforms in 1984, consensual sexual activity between adult males ceased to be a criminal offence. That reform had no retrospective operation. The respondent indicated he would not deny sexual acts occurred, but would assert they first took place in 1981, when the complainant was already 18 and, critically, also when the relevant conduct remained unlawful.

At first instance, the District Court permanently stayed the proceedings. The primary judge was told the trial would resolve into a single factual question: whether the complainant was under or over 18 at the time the sexual acts occurred. The Crown appealed that stay order to the Court of Criminal Appeal.

  • Whether a permanent stay of criminal proceedings was warranted in circumstances where the respondent's own defence placed the conduct at a time when it was still a criminal offence
  • Whether the dates specified in an indictment are material allegations capable of defining the scope of a trial
  • Whether the Crown and accused can, by agreement, reframe the issue for a trial court in a manner inconsistent with the applicable law
  • Whether the absence or loss of corroborating records, and the passage of time, were sufficient to support a permanent stay

Decision

The Court of Criminal Appeal allowed the appeal by majority (Grove J and Smart AJ, Adams J dissenting) and quashed the permanent stay order.

Grove J held that the date specifications in an indictment are immaterial allegations. Parties cannot, by consent or by the terms of their pleadings alone, make those dates material. Crucially, the court reasoned that no court can be required to try an issue that is incompatible with the law as it stood and applied at the relevant time. Because the respondent's own position placed the sexual activity in 1981, when it remained an offence, granting a permanent stay was not justified.

Smart AJ agreed the stay should not have been granted. His Honour also observed that an applicant seeking a permanent stay should be required to verify his position on oath or affirmation. No such verification occurred here. The bare assertion that sexual activity took place a year later than alleged, but at a time when it was still unlawful, provided no proper foundation for the exercise of discretion to permanently stay the proceedings. Smart AJ further noted that the absence or loss of records does not, of itself, ordinarily justify a permanent stay.

Adams J dissented. His Honour took the view that, having specified a date range in the indictment, the Crown should be held to evidence within that span. To permit otherwise would render the trial inevitably unfair. Adams J also discussed the nature of indecency in the context of sexual assault, the concept of equal justice with reference to gender, and the relevance of community standards to the perception of abuse of process.

Orders Made

  • Appeal allowed
  • Order granting the permanent stay quashed

Key Takeaways

  • Date specifications in an indictment are immaterial allegations. The Court of Criminal Appeal confirmed that parties cannot transform them into material issues merely by consent or by the form of pleadings, unless dates independently become material in the course of evidence at trial.
  • A permanent stay of proceedings is not available where the respondent's own asserted defence places the conduct at a time when it was still a criminal offence. The respondent's claim that the activity occurred in 1981 undermined, rather than supported, the case for a stay.
  • An applicant seeking a permanent stay of criminal proceedings should be required to verify his position formally. The absence of such verification was a significant deficiency in the application below.
  • Loss or absence of records or corroborating material does not ordinarily, by itself, be sufficient to justify a permanent stay. The test requires a more substantial foundation.
  • A court cannot be enlisted to try an issue framed by the parties in a manner incompatible with the law as it stood and applied at the relevant time, even where both Crown and defence agree to that framing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Amendment) Act 1984 (NSW)
- Criminal Appeal Act (NSW), s 5F(2)
- Human Rights (Sexual Conduct) Act 1994 (Cth)
- Acts Interpretation Act 1901 (Cth)
- Anti Discrimination Act 1975
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Sexual Offences Act 1956 (Imp)
- Judiciary Act 1903 (Cth)

Key Cases:
- Jago v District Court of NSW (1989) 168 CLR 23
- Walton v Gardiner (1992) 177 CLR 378
- Williams v Spautz (1991) 174 CLR 509
- Connelly v Director of Public Prosecutions [1964] AC 1254
- The Queen v Glennon (1992) 173 CLR 592
- Dietrich v The Queen (1992) 177 CLR 293
- Croome v Tasmania (1997) 191 CLR 119
- R v Davis (1995) 81 ALR 156
- House v The King (1936) 55 CLR 499
- Ridgeway v The Queen (1998) 78 A Crim R 307