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District Court 5 June 2009

R v W

[2009] NSWDC 124

Sexual offences
APPLICATION FOR PERMANENT STAY ALLEGATIONS OF OLD INDECENT ASSAULT DELAY MENTAL IMPAIRMENT OF APPLICANT LOSS OF EVIDENCE

Citation: R v W [2009] NSWDC 124
Court: District Court of New South Wales
Date: 5 June 2009
Judge(s): Murrell SC DCJ

Background

The applicant faced three charges relating to alleged acts of indecency and indecent assault committed against his younger half-sister during a period in approximately October 1978, when the complainant was under 16 years of age. The alleged offending occurred at night during a school holiday stay at their father's home, where the applicant was then living. The applicant denied the charges and intended to run an alibi defence covering the relevant six-month period alleged in the charges.

Prosecution was commenced approximately 30 years after the alleged events. By the time the matter reached the District Court, the applicant was dealing with a range of physical and psychological conditions, including the aftermath of cardiac bypass surgery in 2005 and a diagnosed mild to moderate depressive disorder. Several potential witnesses had died, could not be located, or had experienced memory deterioration in the intervening decades.

The applicant applied for a permanent stay of proceedings before trial, arguing that the combination of lengthy delay, lost evidence, and his own cognitive impairment meant any trial would necessarily be unfair.

  • Whether the delay between the alleged offending (1978) and prosecution gave rise to actual, not merely speculative, prejudice sufficient to found a permanent stay
  • Whether the loss of witnesses and documents constituted a fundamental defect going to the root of any trial
  • Whether the applicant's cognitive impairment, arising from physical and psychiatric conditions, was such that any trial would necessarily be unfair
  • Whether, weighing all those factors together, a permanent stay was warranted as an exceptional remedy

Decision

Murrell SC DCJ applied the established principle that a permanent stay is a wholly exceptional remedy, available only where there is a fundamental defect going to the root of a trial that cannot be remedied by trial management or jury directions. The onus falls heavily on an applicant to demonstrate that any trial would necessarily be an abuse of process, not merely that some disadvantage exists.

On delay and lost evidence, the court acknowledged the considerable passage of time and the resulting loss of witnesses and documents. However, prejudice from absent witnesses whose likely evidence is unknown remains speculative and cannot by itself establish abuse of process. Disadvantage arising from lost evidence relevant to a complainant's credibility can ordinarily be addressed by an appropriate warning to the jury, distinguishing this case from situations where contemporaneous documentary evidence with a direct and immediate bearing on critical events has been destroyed.

On cognitive impairment, the court received expert psychiatric evidence and also directly observed the applicant giving evidence during the stay application. Professor Greenberg had assessed the applicant against the Presser criteria (the legal standard for fitness to stand trial) and found he comfortably met them, diagnosing only a mild to moderate depressive disorder with impairment of attention and concentration that was not substantial. While the court acknowledged real difficulties in the applicant's functioning, it found his performance in the witness box during the application was reasonably good overall, with some hesitation and need for clarification but no profound impairment.

Considering all factors in combination, the court was not satisfied that any trial would necessarily be unfair. The application was refused. The court noted it remained alert to the applicant's cognitive difficulties and would manage trial procedures to ensure he suffered no significant disadvantage.

Orders Made

• The application for a permanent stay of proceedings is refused.

Key Takeaways

  • A permanent stay of criminal proceedings remains a wholly exceptional remedy, available only where a fundamental defect goes to the root of the trial and cannot be cured by appropriate trial management or jury directions.
  • Delay and general prejudice alone are insufficient: actual prejudice must be established, and disadvantage arising from absent witnesses whose likely evidence is unknown remains speculative and cannot found a stay.
  • Where lost evidence affects only the testing of a complainant's credibility, courts have generally treated appropriate jury warnings as an adequate response, rather than granting a stay.
  • Physical and psychiatric conditions affecting an accused may contribute to a stay, but only in rare cases. A finding that the accused comfortably meets the Presser fitness criteria weighs heavily against the conclusion that any trial would necessarily be unfair.
  • Refusing the stay, the District Court emphasised that it would exercise active trial management to protect an accused with cognitive difficulties, underscoring that such difficulties are ordinarily an issue for the trial process rather than grounds to terminate proceedings entirely.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 578A

Cases
- Barton v The Queen [1980] HCA 48
- Barron v Attorney General for NSW (1987) 10 NSWLR 215
- Williams v Spautz (1991-92) 174 CLR 509
- Jago v District Court of NSW (1989) 168 CLR 23
- Walton v Gardner (1992-3) 177 CLR 379
- The Queen v Edwards [2009] HCA 20
- R v WRC [2003] NSWCCA 394
- R v Littler [2001] NSWCCA 173
- R v Westley [2004] NSWCCA 192
- R v Carver [1999] NSWCCA 135
- Boulos v R [2008] NSWCCA 119
- The Queen v Davis (1995) 57 FCR 512
- Hakim (1989) 41 ACR 372
- Austin (1995) 84 ACR 374
- Kesavarajah v R [1994] HCA 41
- Basha (1989) A Crim R 337
- R v Presser (1958) VR 45