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Court of Criminal Appeal 5 September 2000

R v Pike

[2000] NSWCCA 347

Sexual offences

Citation: R v Pike [2000] NSWCCA 347
Court: New South Wales Court of Criminal Appeal
Date: 5 September 2000
Judges: Studdert J, Dowd J, Bell J

Background

The applicant faced an indictment in the District Court on three counts relating to alleged sexual offences against his daughter, said to have occurred between 1978 and 1979 when the complainant was between eleven and twelve years of age. The complainant did not make a statement to police until September 1997, approximately eighteen years after the alleged events. The applicant was committed for trial in January 1999.

Before the trial commenced, the applicant applied to the District Court for a permanent stay of proceedings. He argued that the significant passage of time, the death of a potential witness, the faded memories of surviving witnesses, and the loss of records had so prejudiced his ability to mount a defence that a fair trial was impossible. Judge Freeman refused the application, finding that the circumstances did not meet the high threshold required for a permanent stay.

The applicant then sought leave to appeal that refusal to the Court of Criminal Appeal under section 5F of the Criminal Appeal Act.

  • Whether Judge Freeman's discretion miscarried in finding that the applicant had not been charged in 1979 to 1980 because of the complainant's age.
  • Whether the failure to charge the applicant at or shortly after the time of the alleged offences constituted police conduct that necessitated a permanent stay of proceedings brought nearly eighteen years later.
  • Whether the cumulative prejudice flowing from delay, including the loss of records, the death of a potential witness, and diminished memories, rendered a fair trial impossible and warranted a permanent stay.

Decision

Studdert J, with Dowd J and Bell J agreeing, upheld the refusal of the permanent stay and dismissed the appeal, though leave to appeal was formally granted. The court confirmed the settled principle from Jago v The District Court and The Queen v Glennon that the power to permanently stay proceedings is reserved for extreme and exceptional cases, and is exercised only as an incident of the court's general power to ensure fairness.

On the first two grounds, the court found that Judge Freeman had not actually made the finding the applicant complained of. His Honour had not concluded that the complainant or her mother wanted charges laid in 1979, nor that the police were under a duty to charge the applicant at that time. The evidence before the District Court did not support a conclusion that the police had acted improperly. Officers had attended the property in November 1979 in response to a report involving threats and a firearm and had directed the applicant to leave. There was no sufficient evidentiary basis to say the police should have charged him then.

On the third ground concerning prejudice from delay, the court applied the approach from R v McCarthy, McDonald and Isaksen, emphasising that it is a common occurrence in criminal proceedings for witnesses to die, lose memory, or lose documents. The occurrence of such difficulties does not, of itself, establish that a fair trial is impossible. The court noted that a trial judge retains the responsibility to direct the jury appropriately about the practical difficulties that delay may create for an accused, and that this is a burden regularly carried by presiding judges.

The court concluded that the applicant had not established that proceeding to trial would constitute an abuse of process, and that this case did not fall within the exceptional category where a permanent stay is warranted.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a permanent stay of criminal proceedings is available only in extreme and exceptional circumstances, where no other mechanism can guard against a genuinely unfair trial.
  • A court's power to order a permanent stay is grounded in its general jurisdiction to ensure fairness in proceedings, not as a mechanism to punish prosecuting authorities for delay unless that delay is accompanied by prosecutorial fault.
  • The absence of charges at or near the time of alleged offending does not automatically warrant a permanent stay, particularly where the evidence does not establish that police acted improperly or that they were in a position to charge the accused at the earlier time.
  • Loss of records, the death of a witness, and faded memories are common features of criminal trials and do not, without more, render a fair trial impossible or require proceedings to be stayed permanently.
  • In dismissing the appeal, the court affirmed that a trial judge's obligation to direct the jury about prejudice arising from delay provides a meaningful safeguard, and the difficulty of giving such directions does not establish that no fair trial can be held.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act (NSW), s 5F

Cases:
- Jago v The District Court (1989) 168 CLR 23
- The Queen v Glennon (1992) 173 CLR 593
- Walton v Gardiner 177 CLR 378
- R v Peters (1995) 83 A Crim R 142
- R v VPH (unreported, NSWCCA, 4 March 1994)
- R v McCarthy, McDonald & Isaksen (unreported, NSWCCA, 12 August 1994)