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7
Court of Criminal Appeal 10 May 2016

R v RD

[2016] NSWCCA 84

Sexual offences
CRIMINAL LAW APPEAL CRIMINAL PROCEDURE PERMANENT STAY SEXUAL ASSAULT DELAY IN BRINGING PROCEEDINGS

Citation: R v RD [2016] NSWCCA 84
Court: Court of Criminal Appeal, New South Wales
Date: 10 May 2016
Judge(s): Bathurst CJ; Johnson J; R S Hulme AJ

Background

The respondent was charged with sexually assaulting the complainant on 9 October 1997. The offence was reported the following day, and the respondent participated in a recorded police interview on 15 October 1997, denying the allegations. Despite the complaint being made in 1997, the respondent was not charged until May 2013, and the trial did not commence until July 2015.

At the outset of the trial, the Crown told the jury that the 1997 police interview had been lost. After the complainant gave evidence and was cross-examined, police located a transcript of that interview. Inconsistencies emerged between what the respondent's counsel had put to the complainant in cross-examination and the account the respondent had given in 1997. Both accounts alleged the complainant had fabricated the assault, but for different reasons. The jury was discharged and defence counsel withdrew.

The respondent applied for a permanent stay of proceedings. The primary judge granted the stay on 1 September 2015, citing the significant unexplained delay, the loss of various pieces of evidence, and the prejudice arising from the late service of the 1997 interview. The Crown appealed under s 5F of the Criminal Appeal Act 1912 (NSW).

  • Whether the primary judge misapprehended the Crown's intended use of the 1997 interview transcript, specifically whether she was wrong to find the Crown intended to cross-examine the respondent on inconsistencies between the cross-examination of the complainant at the aborted trial and the 1997 interview.
  • Whether the late service of the 1997 interview imposed an unfair constraint on the respondent's choice to give evidence at any future trial.
  • Whether remedial measures available to the trial judge, particularly rulings under ss 135 and 137 of the Evidence Act 1995 (NSW) and s 130A of the Criminal Procedure Act 1986 (NSW), could have overcome the unfairness.
  • Whether, if error in the primary judge's discretion was established, the proceedings should nonetheless be permanently stayed on account of delay and lost evidence.

Decision

The Court of Criminal Appeal allowed the appeal unanimously. Bathurst CJ delivered the principal judgment, with Johnson J and R S Hulme AJ agreeing.

On the first issue, the Court found the primary judge did not misapprehend the Crown's proposed course. Read in context, her Honour's characterisation of the Crown's intentions, namely cross-examining the respondent on inconsistencies between the case put to the complainant at the aborted trial and the 1997 interview, was accurate. The Court accepted the respondent's submission that the contemplated cross-examination would arise in circumstances where the respondent's evidence at any future trial was likely to be informed by the 1997 interview.

On the question of unfairness, the Court accepted that late service of the 1997 interview could produce unfairness, particularly in affecting the respondent's decision whether to give evidence at a future trial. However, the Court held that this unfairness fell well short of the threshold required for a permanent stay, namely a fundamental defect going to the root of the trial such that nothing the court could do would relieve against its unfair consequences. Advance rulings under s 192A of the Evidence Act or s 130A of the Criminal Procedure Act could exclude cross-examination on the relevant inconsistencies, thereby neutralising the prejudice. The mere possibility that such a ruling might later be revisited did not satisfy the test of inevitable, rather than possible, injustice.

On the lost evidence and delay grounds, the Court found the allegedly lost items, including the drink coaster, phone records, CCTV footage, and the evidence of a witness who could not be located, were of limited significance or went only to the complainant's credibility. None individually or collectively reached the level of loss warranting a permanent stay. On delay, the Court reaffirmed that delay alone requires a showing that the lapse of time makes any trial necessarily unfair, such that a conviction would bring the administration of justice into disrepute. The primary judge had herself accepted the delay did not reach that level, and the Court agreed.

Orders Made

  • Appeal allowed.
  • The order made by the trial judge permanently staying the proceedings was set aside.

Key Takeaways

  • A permanent stay of criminal proceedings remains an exceptional remedy. The Court of Criminal Appeal confirmed that a stay requires a fundamental defect of such a nature that nothing a trial judge can do will relieve against its unfair consequences; the possibility of injustice does not suffice.
  • Where late disclosure of evidence creates potential unfairness, advance rulings under s 192A of the Evidence Act 1995 (NSW) or s 130A of the Criminal Procedure Act 1986 (NSW) may be capable of neutralising that prejudice, and their availability is a relevant consideration in assessing whether a stay is warranted.
  • Evidence rendering a trial unfair is, as a matter of definition, unfairly prejudicial within the meaning of s 137 of the Evidence Act 1995 (NSW), such that the section can operate as a tool to exclude such evidence before prejudice materialises.
  • The possibility that an advance ruling might subsequently be revisited does not, of itself, elevate potential unfairness into the unacceptable injustice necessary to justify a permanent stay.
  • Lost evidence or unavailable witnesses will not ordinarily support a permanent stay where the missing material goes only to the credibility of a witness rather than to a matter of substance, and where other avenues such as cross-examination and jury directions remain open.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), s 130A
- Evidence Act 1995 (NSW), ss 65, 135, 137, 192A

Cases
- Calleija v The Queen [2012] NSWCCA 37; 223 A Crim R 39
- Dupas v The Queen [2010] HCA 20; 241 CLR 237
- House v The King [1936] HCA 40; 55 CLR 499
- Jago v District Court of NSW [1989] HCA 46; 168 CLR 23
- KH v R [2014] NSWCCA 294
- Moeavo v Department of Labour [1980] 1 NZLR 464
- Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
- R v BD (1997) 94 A Crim R 131
- R v Edwards [2009] HCA 20; 255 ALR 399
- R v Gilham [2007] NSWSC 231; 190 A Crim R 303
- R v Glennon [1992] HCA 16; 173 CLR 592
- Walton v Gardiner [1993] HCA 77; 177 CLR 378
- Webb v The Queen [2012] NSWCCA 216; 225 A Crim R 550
- X7 v The Queen [2014] NSWCCA 273