AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 9 July 2004

ATTORNEY-GENERAL v CURRAN

[2004] NSWCCA 234

Sexual offences
INDECENT ASSAULT STATED CASE OUT OF TIME 13 MONTH DELAY S5B(2) CRIMINAL APPEAL ACT 1912 WHETHER LIKELIHOOD WRONGFUL ACQUITTAL S428D CRIMES ACT 1900

Citation: Attorney-General v Curran [2004] NSWCCA 234
Court: New South Wales Court of Criminal Appeal
Date: 9 July 2004
Judge(s): Sheller JA, Sperling J, Adams J

Background

The respondent was convicted in the Local Court of an aggravated indecent assault on an eleven-year-old girl, contrary to s 61M of the Crimes Act 1900. On appeal to the District Court, Judge Morgan found the facts of the assault proved but allowed the appeal on the basis that the respondent's self-induced intoxication meant the prosecution had not established the necessary intention to commit the offence.

Critically, s 428D of the Crimes Act was never brought to the District Court's attention during the appeal. That provision expressly prevents self-induced intoxication from being taken into account when determining whether a person had the mental element required for an offence that is not one of specific intent. Had the section been raised, the outcome may well have been different.

More than thirteen months after the acquittal, Judge Morgan stated a case at the Attorney-General's request, submitting to the Court of Criminal Appeal the question of whether she had erred by taking the respondent's intoxication into account. The respondent opposed the granting of any extension of time to submit the stated case.

  • Whether the Court of Criminal Appeal should grant an extension of time under s 5B(2) of the Criminal Appeal Act 1912 to allow a stated case to be submitted thirteen months after the appeal proceedings concluded.
  • Whether the thirteen-month delay was adequately explained, and what weight should be given to the prejudice caused to the respondent.
  • Whether the Attorney-General had standing to request the stated case in the absence of evidence that the Director of Public Prosecutions had formally taken over the District Court proceedings from the informant.

Decision

The Court confirmed that granting an extension of time under s 5B is a discretionary matter, not an automatic entitlement. The discretion exists to prevent fixed time limits from causing injustice, and its exercise involves weighing the conduct of the parties, the consequences of granting or refusing the extension, and the prospects of success.

On the merits of the underlying question, the Court accepted that the prospects of the stated case being answered favourably to the prosecution were good, and acknowledged that s 428D likely meant the acquittal was wrongful. However, that finding was not enough on its own to justify the extension.

The thirteen-month delay was found to be largely unexplained. The informant or DPP had itself contributed to the oversight by failing to draw s 428D to Judge Morgan's attention. There was no evidence of any attempt to expedite the matter until it reached the Crown Advocate, and the first communication with the respondent did not occur until January 2004. The Court found that the respondent would reasonably have regarded himself as acquitted from February 2003, and his exposure to the ongoing uncertainty constituted real prejudice. Sheller JA held that granting an extension to excuse such a delay would be a travesty of justice.

Additionally, the Court found that the Attorney-General lacked standing to request the stated case in any event. Standing depended on the Director of Public Prosecutions having formally taken over the District Court proceedings from the informant pursuant to the Director of Public Prosecutions Act 1986, and no written notice under s 10 of that Act had been given to the court.

Orders Made

  • Extension of time for filing the stated case is refused.
  • The Court declines to answer the question of law submitted, as it was submitted out of time.

Key Takeaways

  • The discretion to extend time under s 5B(2) of the Criminal Appeal Act 1912 is not exercised automatically; even strong prospects of success on the underlying question of law do not guarantee an extension where the delay is long and largely unexplained.
  • A thirteen-month delay in seeking to submit a stated case was held to be fatal to the application, particularly where the prosecution itself contributed to the original error by failing to cite a directly applicable statutory provision.
  • Where a respondent has every reason to regard themselves as finally acquitted, prolonged inaction by the prosecution can constitute real and cognisable prejudice sufficient to weigh against granting an extension of time.
  • Under s 5B of the Criminal Appeal Act 1912, the Attorney-General's standing to request a stated case depended on the DPP having formally assumed carriage of the proceedings by written notice under s 10 of the Director of Public Prosecutions Act 1986; without that formal step, standing was not established.
  • Section 428D of the Crimes Act 1900 prevents self-induced intoxication from being taken into account when determining mens rea for offences other than those of specific intent, and its omission from District Court appeal argument was treated as a significant contributing cause of the wrongful acquittal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 428B, 428D
- Criminal Appeal Act 1912 (NSW), s 5B
- Director of Public Prosecutions Act 1986 (NSW), s 10
- Justice Legislation Amendment (Non-association and Place Restriction) Act 2001 (NSW)

Cases:
- Gallo v Dawson (1960) 64 ALJR 458