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Court of Criminal Appeal 12 September 2000

R v Kenny

[2000] NSWCCA 364

Sexual offences
CRIMINAL LAW UNAVAILABILITY OF WITNESS REFUSAL OF PERMANENT STAY

Citation: R v Kenny [2000] NSWCCA 364
Court: NSW Court of Criminal Appeal
Date: 12 September 2000
Judge(s): Foster AJA, Dunford J, Smart AJ

Background

The appellant faced prosecution on eight serious sexual offences allegedly committed against two young brothers in 1985 and 1986, when the complainants were aged nine to eleven. The offences were alleged to have occurred while the boys were in the care of the appellant's grandmother, Mrs Nelson, who acted as their babysitter. The appellant lived nearby with Mrs Nelson and his mother.

No complaint was made at the time. The boys' father reported the matter to police in 1995, nearly a decade after the alleged events. By that time, Mrs Nelson was elderly and, by the time of the stay application, was physically and mentally unable to give evidence.

The appellant had already faced two trials. His first was aborted and his second resulted in conviction, but the Court of Criminal Appeal quashed those convictions in August 1997 due to a deficient summing-up. On the eve of a third trial, the appellant applied for a permanent stay of proceedings, arguing that Mrs Nelson's unavailability caused him irreparable prejudice. That application was refused by Wall ADCJ in the District Court, and the appellant appealed to the Court of Criminal Appeal.

  • Whether the unavailability of Mrs Nelson, due to her physical and mental incapacity, caused the appellant such serious prejudice that a permanent stay of proceedings was warranted
  • Whether the circumstances of the case fell within any recognised exception to the general rule that the death or incapacity of a witness does not, of itself, justify a stay
  • Whether, on all the materials before it (including evidence from the earlier trial not before the primary judge), the Court of Criminal Appeal should intervene and grant a stay

Decision

Smart AJ (with whom Foster AJA and Dunford J agreed) dismissed the appeal. The court confirmed that the general rule, drawn from earlier Court of Criminal Appeal authority, is that the mere death or unavailability of a witness does not, as a matter of course, warrant the grant of a permanent stay. There may be cases where the peculiar nature of the circumstances justifies a stay, but this was not one of them.

The court drew a distinction between this case and the kind of exceptional situation illustrated by cases such as R v Davis, where a medical practitioner faced allegations relating to thousands of patients and his clinical records had been destroyed. In those circumstances, a defendant could not realistically instruct counsel or mount a coherent defence. Mrs Nelson's situation, while significant, did not reach that threshold.

The court noted several factors that mitigated the prejudice to the appellant. He retained his own evidence, the benefit of his mother's account of what Mrs Nelson had told her about the allegations, and the protection of appropriate jury directions aimed at counteracting any unfairness arising from Mrs Nelson's absence. The court also noted that the appellant himself had, at the time of the second trial, mounted a substantial documentary and witness-based defence concerning his movements, without placing any particular reliance on Mrs Nelson's evidence. The shift in emphasis toward Mrs Nelson's potential evidence appeared to be a change in defence strategy rather than a reflection of truly irreplaceable testimony.

Smart AJ also observed that the Court of Criminal Appeal had access to materials, including the full course of the second trial and the 1997 judgment, that had not been placed before Wall ADCJ. Even with that fuller picture, a stay was not warranted.

Orders Made

  • Appeal dismissed

Key Takeaways

  • The general rule confirmed in this decision is that the death or incapacity of a witness does not, without more, provide a basis for a permanent stay of criminal proceedings.
  • An exception exists where the peculiar nature of the circumstances renders a fair trial truly impossible, such as where the loss of records or evidence leaves a defendant wholly unable to give meaningful instructions or mount any coherent defence.
  • Weighing the full circumstances, including alternative sources of evidence, available jury directions, and the defendant's own capacity to give evidence, forms part of the balancing exercise in any stay application.
  • In dismissing the appeal, the Court of Criminal Appeal exercised its discretion under s 5F(5) of the Criminal Appeal Act 1912, which permitted it to affirm the order appealed against on the totality of the materials before it, even where those materials differed from those before the primary judge.
  • A shift in defence strategy that elevates a previously de-emphasised witness to a position of central importance does not automatically transform the witness's unavailability into grounds justifying a permanent stay.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(5)

Cases:
- Jago v The District Court of NSW & Others (1989) 168 CLR 23
- R v McCarthy, NSW Court of Criminal Appeal, unreported, 12 August 1994
- R v Goldburg, NSW Court of Criminal Appeal, unreported, 23 February 1993
- R v Davis (1995) 81 ALR 156