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Court of Criminal Appeal 28 August 2002

R v H

[2002] NSWCCA 355

Also reported as (2002) 132 A Crim R 551
Sexual offences
CRIMINAL LAW SEXUAL OFFENCES INTERLOCUTORY APPEAL APPLICATION FOR PERMANENT STAY ABUSE OF PROCESS DELAY.

Citation: R v H [2002] NSWCCA 355
Court: NSW Court of Criminal Appeal
Date: 28 August 2002
Judge(s): Ipp AJA, Dunford J, Bergin J

Background

The applicant faced an indictment in the District Court at Lismore for buggery (an offence under the Crimes Act 1900 as it stood in 1970) alleged to have been committed against his son. He had separately pleaded guilty to one count of indecent assault upon his daughter, following which the remaining charge concerning the daughter was no-billed.

The applicant contended that his guilty plea to the indecent assault charge had been entered on the understanding that the buggery charge concerning his son would also be dropped. When the Director of Public Prosecutions declined to no-bill that charge, the applicant applied for a permanent stay of the buggery proceedings in the District Court.

Morgan DCJ refused the stay on 6 July 2001, suggesting the DPP might reconsider. After a further application to the Director was also refused, the applicant sought leave to appeal to the Court of Criminal Appeal under section 5F of the Criminal Appeal Act 1912.

  • Whether the continuation of the buggery prosecution amounted to an abuse of process, on the basis that the applicant had pleaded guilty to the indecent assault charge in reliance on an understanding that the buggery charge would not be proceeded with.
  • Whether the delay between the alleged offending (1970) and the prosecution caused such forensic disadvantage to the applicant as to render a fair trial impossible.
  • Whether the public interest in prosecuting a 1970 allegation of buggery, combined with the other factors, collectively amounted to an abuse of process justifying a permanent stay.
  • Whether the primary judge erred in the exercise of her discretion to refuse the stay.

Decision

On the plea bargain ground, the Court found that the evidence did not support the applicant's contention that an unambiguous agreement had been made to withdraw the buggery charge in exchange for his guilty plea. The Crown Prosecutor had expressed the view that there was little prospect of conviction on the buggery count and indicated he would recommend a no-bill, but that recommendation was never accepted by the Director. The document the applicant signed before pleading guilty made no reference to any charge concerning his son. The Court found no binding representation had been made that was sufficient to found an abuse of process.

On the delay ground, the Court acknowledged the significant passage of time since 1970 and that the applicant faced difficulties in responding to allegations of that age. However, the Court noted that the complainant had not come forward until relatively recently, which explained much of the delay, and that there was no evidence the applicant had taken steps to preserve records or witnesses that had since been lost. The Court held the primary judge had not erred in concluding the delay, while substantial, did not make a fair trial impossible.

The Court also addressed the proposed use of tendency and relationship evidence concerning other sexual acts alleged by the complainant. It noted that such evidence is commonly admitted in child sexual abuse cases as transactional or relationship evidence, and that any question of exclusion under section 135 of the Evidence Act 1995 was a matter for the trial judge to determine.

Considering the applicant's submission that the combined effect of all the factors amounted to an abuse of process, the Court was not persuaded. It found no error in Morgan DCJ's ultimate conclusion and dismissed the appeal.

Orders Made

  • Time for making the application extended.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • An appeal against a refusal to grant a permanent stay is an appeal against the exercise of a discretion. The Court of Criminal Appeal will only intervene where the primary judge acted on a wrong principle, gave weight to irrelevant matters, failed to weigh relevant considerations, or reached a result so unreasonable that a failure to properly exercise the discretion can be inferred.
  • A Crown Prosecutor's informal indication that a no-bill recommendation will be made does not, without more, constitute a representation sufficient to found an abuse of process. The critical question is whether an unambiguous promise was actually made and relied upon.
  • Where delay in prosecuting a historical sexual offence is explained largely by the complainant's own delay in coming forward, that delay will not automatically render a fair trial impossible or justify a permanent stay.
  • Tendency and relationship evidence of surrounding sexual acts is commonly admitted in child sexual abuse prosecutions. Questions about exclusion under section 135 of the Evidence Act 1995 are for the trial judge, not a stay application.
  • In dismissing the appeal, the Court confirmed that the cumulative effect of individually insufficient grounds does not automatically reach the threshold for a permanent stay on abuse of process grounds.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), ss 135, 164, 165
- Crimes Act 1900 (NSW), ss 78H, 79, 81A

Cases:
- R v Kennedy (NSWCCA, unreported, 9 December 1998)
- Longman v The Queen (1989) 168 CLR 79
- Crampton v The Queen [2000] 176 ALR 369
- Doggett v The Queen [2001] HCA 46, 182 ALR 1
- R v BWT [2002] NSWCCA 60
- R v Geoghegan [1999] NSWCCA 20
- R v PH (NSWCCA, unreported, 4 March 1994)
- R v Littler [2001] NSWCCA 173
- Jago v District Court of NSW (1989) 168 CLR 23
- Walton v Gardiner (1993) 177 CLR 378
- R v Allen (1848) 1 Den CC 364