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Court of Criminal Appeal 6 August 2004

Regina v Frederick Westley

[2004] NSWCCA 192

Sexual offences
CRIMINAL LAW AND PROCEDURE CARNAL KNOWLEDGE INTERLOCUTORY APPEAL PRINCIPLES APPLICABLE DELAY UNCERTAINTY OF DATES

Citation: Regina v Frederick Westley [2004] NSWCCA 192
Court: NSW Court of Criminal Appeal
Date: 6 August 2004
Judge(s): Dunford J, Hidden J, Adams J

Background

The applicant, a man aged almost 77 at the time of the appeal, faced an indictment in the District Court containing three counts of historical sexual offences: one count of indecent assault and two counts relating to carnal knowledge and further indecent assault. The alleged offences were said to have occurred approximately 25 to 30 years before the charges were laid in October 1999. The complainant was approximately 12 or 13 years old at the time of the alleged offences and was 42 years old at the time of the appeal.

The applicant applied for a permanent stay of proceedings in the District Court, raising several grounds: prejudice from lengthy delay, unreliability of the complainant's evidence, and the serious health consequences that a trial would have on both himself and his wife. Nash ADCJ refused the stay application in December 2003. The applicant then sought leave to appeal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912.

  • Whether the District Court erred in refusing a permanent stay of proceedings on the grounds of delay and prejudice to the accused
  • Whether the ill health of the applicant and his wife constituted a basis for finding the trial oppressive and an abuse of process
  • Whether the prosecution was doomed to fail because, under s 78 of the Crimes Act 1900, the offences were statute-barred if the complainant was 14 years or older at the time they occurred, and whether the available evidence was capable of proving beyond reasonable doubt that she was under 14 at the relevant time

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, though not primarily on the grounds argued before the District Court. Dunford J (with whom Hidden J and Adams J agreed) found no error in Nash ADCJ's exercise of discretion in refusing the stay on the original grounds of delay, prejudice, and health concerns. The primary judge had correctly applied the principles from Jago v The District Court of New South Wales and had reached a conclusion open to him.

The decisive issue arose from a fresh point raised on appeal: s 78 of the Crimes Act 1900 barred the relevant prosecutions if the complainant was 14 years of age or older at the time of the alleged offences. The complainant's own evidence was uncertain as to her precise age. She had told David Watson in approximately 1985 that she was 13 to 14 years old at the time, and medical notes from 1995 recorded that she was "aged 12" when abused. However, fresh evidence on appeal, including school records showing the complainant commenced high school in January 1974, pointed to the possibility that the New Year's Eve party (the occasion of the first alleged offence) may have occurred in 1974, at which point she may already have been 14.

Dunford J concluded that all available evidence, including the fresh school records, was incapable of satisfying a jury beyond reasonable doubt that the complainant was under 14 years of age at the time of the alleged offences. Because the prosecution was therefore doomed to failure, remitting the matter to the District Court would serve no useful purpose. A permanent stay was granted in lieu of the District Court's order.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Order of the District Court set aside
  • Prosecution permanently stayed

Key Takeaways

  • Where a statutory provision bars a prosecution unless a specific factual element is proved beyond reasonable doubt, and the available evidence is incapable of satisfying that standard, a prosecution is "doomed to failure" and a permanent stay is the appropriate remedy.
  • The Court of Criminal Appeal confirmed that an appellate court reviewing a refusal to grant a permanent stay is reviewing the exercise of a discretion, and will only intervene where the primary judge has erred in principle or reached a conclusion not open on the material.
  • A fresh legal issue not raised before the primary judge (here, the operation of s 78 of the Crimes Act 1900) may nonetheless be considered on appeal under s 5F where the Court has a general power to receive fresh evidence, provided the issue properly arises from the record.
  • Uncertainty as to the dates of alleged historical offences, while potentially prejudicial to an accused's ability to mount a defence, is analytically distinct from the question of whether the Crown can affirmatively prove a particular fact (such as a complainant's age) to the criminal standard.
  • No error was established in the primary judge's rejection of delay, unreliability of evidence, and health concerns as independent grounds for a permanent stay, even when considered cumulatively.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 71, 76, 78
- Criminal Appeal Act 1912 (NSW) s 5F

Cases:
- Jago v The District Court of New South Wales (1989) 168 CLR 23
- House v The King (1936) 55 CLR 499
- Dyers v The Queen [2002] HCA 45, 210 CLR 285
- Longman v The Queen (1989) 168 CLR 79
- Rodway v The Queen (1990) 169 CLR 515
- R v BWT [2002] NSWCCA 60, 54 NSWLR 241
- R v Littler [2001] NSWCCA 173, 120 A Crim R 512
- R v Nicholson (1998) 102 A Crim R 459
- R v Alexandroaia (1994) 81 A Crim R 286
- R v Austin (1995) 84 A Crim R 374
- R v Davis (1995) 81 A Crim R 156
- R v Hakim (1989) 41 A Crim R 372
- R v Helmling (CCA, 11 November 1993)
- R v Kennedy (NSWCCA, 9 December 1998)
- R v Tolmie (CCA, 7 December 1994)