Citation: Regina v Henman [2000] NSWCCA 58
Court: NSW Court of Criminal Appeal
Date: 8 March 2000
Judge(s): Fitzgerald JA, Abadee J, Barr J
Background
The applicant was committed for trial in the Dubbo District Court on charges of sexual offences against a complainant who was allegedly four or five years old at the time of the alleged incidents. The charges included three counts of digital penetration and one count of indecent assault. The complainant was a relative of the applicant by marriage and had given evidence and been cross-examined during committal proceedings.
Before trial, the applicant filed a Notice of Motion seeking a permanent stay of proceedings. The grounds included that the alleged incidents were old, that the prosecution formed part of a systematic course of discrimination against the applicant as a male, and that the complainant's age at the time of the alleged events made a fair trial impossible. An alternative application sought a conditional stay pending medical examination of the complainant.
Judge Knight in the District Court dismissed both applications after detailed consideration of written and oral submissions, supported by an affidavit from an expert psychiatrist retained by the applicant's solicitor. The applicant then sought leave to appeal to the Court of Criminal Appeal under section 5F of the Criminal Appeal Act 1912 (NSW).
Legal Issues
- Whether the District Court erred in refusing to grant a permanent stay of the criminal proceedings on the ground that a fair trial was impossible
- Whether the District Court erred in refusing to grant a conditional stay pending medical examination of the complainant
- Whether any error of law or miscarriage of discretion occurred in Judge Knight's exercise of his discretion to refuse the stay
Decision
Abadee J, with whom Fitzgerald JA and Barr J agreed, found no error in Judge Knight's approach. His Honour had considered each argument carefully and in detail, and had concluded that no unfairness existed which would prevent a fair trial according to law. The Court of Criminal Appeal saw nothing in the reasoning to suggest the discretion had miscarried.
The Court noted that permanent stays are discretionary and reserved for the most exceptional circumstances, citing the High Court's decision in Jago v District Court of New South Wales (1989) 168 CLR 23. The applicant's central argument, presented in several forms, was that a fair trial was structurally impossible given both the nature of the charges and the age difference between the complainant at the time of the alleged events and at the time of trial. The Court did not accept that this argument reached the threshold required for a permanent stay.
Fitzgerald JA added that there was no basis for concluding that the applicant could not receive a fair trial or that the trial judge would fail to take necessary steps to ensure fairness. All three judges agreed that leave to appeal should be refused.
Orders Made
- Leave to appeal refused
Key Takeaways
- Permanent stays of criminal proceedings are discretionary and reserved for the most exceptional circumstances, as confirmed by the High Court in Jago v District Court of New South Wales (1989) 168 CLR 23.
- In refusing leave, the Court of Criminal Appeal confirmed that arguments about structural unfairness, including those based on the complainant's age at the time of alleged events and at the time of trial, did not satisfy that high threshold in this case.
- No error of law was established in the District Court's exercise of its discretion to refuse both a permanent stay and a conditional stay pending medical examination of the complainant.
- The existence of detailed submissions, expert psychiatric evidence, and prior cross-examination of the complainant at committal did not, of themselves, demonstrate that a fair trial was impossible.
- Where a trial judge is yet to preside, the Court gave weight to the capacity of that judge to provide appropriate directions and safeguards necessary for a fair trial.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
Cases:
- Jago v District Court of New South Wales (1989) 168 CLR 23