Citation: R v RL (No 2) [2016] NSWDC 182
Court: District Court of New South Wales
Date: 19 August 2016
Judge: Berman SC DCJ
Background
The accused was tried before a judge sitting alone on an indictment containing multiple counts relating to alleged sexual offences occurring many decades ago. On 5 August 2016, the trial judge found the accused guilty on count 7 of the indictment, which alleged a breach of section 76 of the Crimes Act occurring between April and December 1969, when the complainant was 15 years old.
The matter returned to court on 19 August 2016 for sentencing on count 7 and two counts to which the accused had earlier pleaded guilty. It was only the evening before the sentencing hearing that defence counsel identified a fundamental problem with the count 7 conviction.
Section 78 of the Crimes Act, as it stood at the time of the alleged offence and until its repeal in 1992, prohibited any prosecution under section 76 where the complainant was aged between 14 and 16 years, unless commenced within 12 months of the alleged offence. The prosecution had been commenced well outside that 12-month window.
Legal Issues
- Whether the conviction on count 7 could stand given that the prosecution was barred by the statutory time limit in section 78 of the Crimes Act.
- Whether the trial judge retained any power to withdraw or alter the conviction after delivering judgment on 5 August 2016.
- What procedural steps were available to address the invalid conviction in the absence of any such power.
Decision
The Crown conceded that the prosecution on count 7 should never have been commenced, and that the count should not have appeared on the indictment at all. The statutory bar in section 78 of the Crimes Act rendered the conviction a nullity in practical terms, even though the judge had already formally delivered his verdict.
The trial judge accepted, and both parties agreed, that no power existed to withdraw or amend the conviction after judgment had been delivered. The court had, in effect, exhausted its jurisdiction over the verdict once it was pronounced.
The only available course was a stay of any further proceedings on the conviction. The judge accepted the submission of senior defence counsel, drawing on extensive experience, that the appropriate remedy was to stay proceedings and leave any formal quashing of the conviction to the Court of Criminal Appeal.
Orders Made
- Proceedings on the conviction of the accused on count 7 were stayed.
Key Takeaways
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A trial judge in the District Court has no power to withdraw or amend a verdict and conviction after judgment has been formally delivered, even where the conviction is later discovered to be legally untenable.
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Section 78 of the Crimes Act (as it stood until 1992) imposed a 12-month limitation period on prosecutions under section 76 where the complainant was between 14 and 16 years of age; commencement of proceedings outside that period was an absolute bar to conviction.
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Where a statutory time bar to prosecution is discovered only after conviction, the appropriate interim remedy in the District Court is a stay of further proceedings on that conviction.
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Formal quashing of a conviction tainted by jurisdictional error of this kind is a matter for the Court of Criminal Appeal, not the sentencing court.
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The late discovery of a fundamental defect in an indictment count, even on the eve of sentencing, does not revive the trial court's jurisdiction to alter its own verdict.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), section 76 (the substantive offence charged)
- Crimes Act (NSW), section 78 (time limitation on prosecution, operative until 1992)
Cases cited: No cases were cited in the judgment.