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Court of Criminal Appeal 12 July 2002

Regina v R W O

[2002] NSWCCA 133

Sexual offences

Citation: Regina v R W O [2002] NSWCCA 133
Court: NSW Court of Criminal Appeal
Date: 12 July 2002
Judge(s): Ipp AJA, Bell J, Smart AJ

Background

The appellant faced ten counts on indictment relating to alleged sexual offences against two sisters, RPL and SML, said to have occurred between 1965 and 1967. The complainants were children aged between nine and thirteen at the time of the alleged offending. The appellant was in a relationship with, and later married, an older sister of the two complainants.

The complainants first reported the allegations to police in December 1997, some 31 to 33 years after the conduct was alleged to have occurred. The proceedings were brought in the District Court at Wollongong.

Before trial, the appellant applied in the District Court for a permanent stay of the indictment. Judge Goldring refused that application, and the appellant sought leave to appeal that interlocutory decision to the Court of Criminal Appeal.

  • Whether the trial judge gave insufficient weight to evidence of actual prejudice caused by the lengthy delay, such that any future trial would necessarily be unfair
  • Whether the commencement and continuation of the proceedings amounted to oppression, independent of fair trial considerations
  • Whether the circumstances in which the complaints came to be made to police (including that the complainants had discussed the allegations with each other and family members over many years) supported a finding of oppression
  • Whether the trial judge erred by taking into account an irrelevant consideration, namely the residual prosecutorial discretion of the Director of Public Prosecutions

Decision

Bell J, with whom Ipp AJA and Smart AJ agreed, dismissed the appeal. The court found that Judge Goldring had correctly applied the principles from Jago v the District Court of New South Wales (1989) 168 CLR 23, which govern applications for permanent stays on grounds of delay and unfairness.

On the question of actual prejudice, the court found no error in the weight the trial judge assigned to the appellant's evidence. The prejudice relied upon included the loss of witnesses and the circumstance that the complainants had discussed their allegations with each other and with family members over many years. While these matters were relevant, the court found they did not compel the conclusion that a fair trial was impossible.

The oppression ground was also rejected. The appellant argued that the circumstances surrounding the reporting of the complaints to police independently gave rise to oppression. The court found that the complainants had cooperated with police for no suggested purpose other than the prosecution of the alleged offences, and the evidence did not support the oppression characterisation.

On the final ground, the court found no error in the trial judge's references to the prosecutorial discretion of the Director of Public Prosecutions. Read in context, the trial judge was simply adopting observations from R v Tolmie to the effect that a court's refusal of a permanent stay does not relieve the Director of separately considering, under the relevant statutory framework, whether the prosecution ought to proceed. There was nothing to suggest the trial judge had abdicated his own discretionary function.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A permanent stay of criminal proceedings is exceptional relief, and the Court of Criminal Appeal confirmed it will only be granted where it is demonstrated that a fair trial is no longer possible or that the continuation of proceedings constitutes oppression.
  • Lengthy delay between alleged offending and prosecution does not automatically establish the impossibility of a fair trial; an applicant must demonstrate actual, identifiable prejudice of sufficient weight.
  • The fact that complainants have discussed allegations with each other and with family members over many years is a relevant consideration in a stay application, but does not of itself compel the conclusion that any trial will be unfair.
  • In dismissing the oppression ground, the Court of Criminal Appeal found no basis for that characterisation where the complainants had simply cooperated with police for the purpose of reporting alleged offences.
  • A trial court's refusal to grant a permanent stay does not relieve the Director of Public Prosecutions of independently exercising the prosecutorial discretion available under the Director of Public Prosecutions Act 1986, including consideration of the likelihood of conviction.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 72, 76
- Criminal Appeal Act 1912 (NSW), s 5F(3)(a)
- Director of Public Prosecutions Act 1986 (NSW), s 7
- Evidence Act 1995 (NSW)

Cases:
- Jago v the District Court of New South Wales (1989) 168 CLR 23
- Barton v The Queen (1980) 147 CLR 75
- Crampton v The Queen [2000] HCA 60; 75 ALJR 133
- Glennon v The Queen (1992) 173 CLR 592
- Hoch v The Queen (1988) 165 CLR 292
- Longman v The Queen (1989) 168 CLR 79
- Rodway v The Queen (1990) 169 CLR 647
- Walton v Gardiner (1993) 177 CLR 379
- R v Tolmie (unreported) NSWCCA, 7 December 1994
- Regina v Littler [2001] NSWCCA 173; 120 A Crim R 512
- Regina v BWT [2002] NSWCCA 60
- Regina v SJB [2002] NSWCCA 163
- Regina v JBV [2002] NSWCCA 212