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6
Court of Criminal Appeal 12 May 2003

R v Sepulveda

[2003] NSWCCA 131

Sexual offences
HELD WAS APPLICABLE HELD WAS AMENDMENT HELD NO ERROR IN EXERCISE OF DISCRETION

Citation: R v Sepulveda [2003] NSWCCA 131
Court: Court of Criminal Appeal, New South Wales
Date: 12 May 2003
Judge(s): Giles JA; Dunford J; Smart AJ

Background

The appellant was charged with twenty-two sexual offences against two brothers, committed for trial on twelve of those counts, and arraigned in the District Court on the first indictment in November 2001. The alleged offences spanned the period from 1978 to 1983.

Shortly before the scheduled trial date in March 2002, a third brother (who had previously declined to cooperate with police) agreed to make a statement alleging further offences against him. The trial was vacated, and the Crown subsequently filed a second indictment containing twenty-one counts, including thirteen new counts relating to the third brother. Those new counts had not been the subject of any committal proceedings.

The appellant applied to the District Court to refuse leave to present the amended indictment, or alternatively to stay proceedings on the new counts pending committal proceedings. The District Court granted leave on the basis that a "Basha inquiry" (a pre-trial procedure allowing cross-examination of witnesses who were not examined at committal) could adequately address any prejudice. The appellant appealed to the Court of Criminal Appeal.

  • Whether section 63A of the Criminal Procedure Act 1986, which prohibits amendment of an indictment after presentation without leave or consent, applied to the new counts, given that they were ex officio counts (counts added by the prosecution without any prior committal)
  • Whether the replacement of the first indictment with the second indictment constituted an "amendment" within the meaning of s 63A
  • Whether the District Court erred in the exercise of its discretion to grant leave on the basis that a Basha inquiry would remedy any prejudice arising from the absence of committal proceedings
  • Whether the District Court erred in refusing a stay of proceedings on the new counts until committal proceedings had been conducted

Decision

Section 63A applies to ex officio counts. The Court of Criminal Appeal held that s 63A was not limited to counts arising from a prior committal. The provision applies to all indictments, and the fact that the new counts were ex officio in character did not remove them from the section's operation. The Crown therefore required leave to file the second indictment. The Court noted that the District Court had erred in its initial construction of s 63A, but because the judge had nonetheless proceeded to grant leave, the record contained the correct result.

The second indictment constituted an amendment. The Court confirmed that substituting one indictment for another falls within the definition of "amendment" under s 63A(3), which expressly includes substitution.

No error in granting leave. By majority (Giles JA and Dunford J), the Court found no error in the exercise of the District Court's discretion to grant leave. The judge had identified the potential prejudice to the appellant from the absence of committal proceedings and concluded that a Basha inquiry held before trial would adequately address that prejudice. The majority was satisfied the relevant matters were taken into account and the conclusion was not unreasonable. Smart AJ dissented on this point, finding the discretion was exercised unreasonably given the major expansion of the charges, the age of the alleged events, and the significant investigative burden placed on the appellant without the benefit of committal proceedings.

No error in refusing the stay. By majority, the Court also found no error in the refusal of a stay of the new counts pending separate committal proceedings. The effect of the orders, though not expressed in those terms, was a stay of proceedings until the Basha inquiry had been completed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Section 63A of the Criminal Procedure Act 1986 applies to all indictments after presentation, including where the amendments or substituted counts are ex officio counts that have not been the subject of prior committal proceedings.
  • Replacing a first indictment with a second indictment constitutes an "amendment" for the purposes of s 63A(3), which expressly includes substitution.
  • Where leave to amend is sought under s 63A, the primary discretionary question is whether the accused would be unfairly prejudiced by the absence of committal proceedings on the new counts, and whether any such prejudice can be overcome by an alternative procedure such as a Basha inquiry.
  • A Basha inquiry conducted before trial can, in appropriate circumstances, satisfy the court that leave to amend should be granted, even where there have been no committal proceedings on new counts involving serious and historic allegations.
  • Smart AJ dissented on the discretion question, taking the view that the substantial expansion of charges, the age of the alleged offences, and the investigative difficulties facing the appellant created a sufficiently compelling case for committal proceedings rather than a Basha inquiry alone. This dissent illustrates that the exercise of the discretion remains sensitive to the particular facts.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 63A (amendment of indictment after presentation), s 64
- Criminal Appeal Act 1912 (NSW), s 5F(3)
- Justices Act 1902 (NSW), s 48E

Cases:
- Barron v Attorney General for New South Wales (1987) 10 NSWLR 215
- Barton v The Queen (1980) 147 CLR 75
- Fraser v The Queen (No 2) (1985) 1 NSWLR 680
- Grassby v The Queen (1989) 168 CLR 1
- House v The King (1936) 55 CLR 499
- R v Basha (1989) 39 A Crim R 337 (the source of the "Basha inquiry" procedure)
- R v Clarke (1993) 71 A Crim R 58
- R v Hull (1989) 16 NSWLR 385
- R v Lars (1994) 73 A Crim R 91