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Court of Criminal Appeal 7 June 2018

R v Blackett

[2018] NSWCCA 114

Sexual offences
CRIMINAL LAW PROCEDURE PERMANENT STAY

Citation: R v Blackett [2018] NSWCCA 114
Court: Court of Criminal Appeal, NSW
Date: 7 June 2018
Judges: Leeming JA (principal judgment); Button J (agreeing); Fagan J (agreeing, with additional reasons)

Background

The accused had pleaded guilty to five counts of indecent assault and sexual intercourse with a 13-year-old complainant, committed between October 1987 and February 1988. The remaining 15 counts on the indictment (counts 6 to 20) charged him with sexual intercourse with the same complainant after she had turned 14, contrary to former s 66C(2) of the Crimes Act 1900 (NSW). That provision applied where the complainant was a child between 10 and 16 years who was "under the authority" of the offender.

The factual setting involved a communal Sannyasin household in Bondi during 1988, in which the accused and the teenage complainant lived together for much of the year. After a period sharing a room and then a granny flat, the pair moved into a Bellevue Hill unit of which they were the sole occupants, with the accused paying rent, groceries and bills.

Before the trial commenced, the District Court granted a permanent stay of counts 6 to 20 on the basis that the Crown evidence was insufficient to establish that the complainant had been "under the authority" of the accused. The Crown appealed that interlocutory ruling to the Court of Criminal Appeal under s 5F(2) of the Criminal Appeal Act 1912 (NSW).

  • Whether the District Court applied the correct legal test when granting a permanent stay based on the perceived weakness of the Crown's evidence.
  • Whether the Crown's case on the "under the authority" element of former s 66C(2) was so incurably deficient that a permanent stay was warranted before trial.
  • Whether a pre-trial stay application is an appropriate vehicle for raising a challenge to the sufficiency of Crown evidence on a contested factual element.

Decision

Leeming JA concluded that the primary judge had applied an incorrect legal test in granting the stay. The correct and exceptional jurisdiction to grant a permanent stay of criminal proceedings on evidentiary grounds requires the prosecution to be "foredoomed to fail" and its deficiency to be "incurable." This is a demanding standard, not simply a finding that the available evidence is weak or that the Crown faces difficulty on a particular element.

On the facts of this case, the Court held that the threshold had not been reached. The question of whether the complainant was "under the authority" of the accused was genuinely contested and evidence-dependent, turning on the precise relationship between the parties. The Crown brief included statements describing the accused as providing financial support, managing lease arrangements and effectively standing in for parental care. That material was capable of supporting the relevant element at trial. It could not be said, before the Crown case was even opened, that the prosecution was condemned to fail.

Fagan J added that the proper procedural vehicle for challenging evidentiary sufficiency of this kind is an application for a directed acquittal at the close of the Crown case, not a pre-trial stay application. Granting a stay before arraignment on an evidence-dependent factual issue would require a judge to assess a Crown brief and pre-empt prosecutorial decisions, which conflicts with established principle about the limits of judicial involvement in the prosecution function. A pre-trial stay could not, in any event, be truly permanent where the evidence at trial might differ from what appeared in the brief.

Orders Made

• Orders as proposed by Leeming JA should be made

Key Takeaways

  • The Court of Criminal Appeal confirmed that a permanent stay of criminal proceedings on evidentiary grounds is an exceptional remedy, available only where the prosecution is genuinely "foredoomed to fail" and the deficiency is incurable, not merely where the Crown faces a difficult factual question.
  • A contested, evidence-dependent element of an offence, such as whether a complainant was "under the authority" of the accused, is not the type of incurable flaw that can support a pre-trial permanent stay.
  • The appropriate procedural mechanism for challenging the sufficiency of Crown evidence on a factual element is an application for a directed acquittal at the close of the Crown case, not a pre-trial stay.
  • Granting a stay before trial on sufficiency grounds risks impermissible judicial intrusion into prosecutorial decision-making, a principle the Court reinforced by reference to longstanding High Court authority including Barton v The Queen and Walton v Gardiner.
  • Where evidence at trial may differ from the Crown brief, any pre-trial stay could not be truly permanent, underscoring the futility of using the stay jurisdiction to address evidentiary adequacy before a case has been heard.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), former ss 61A, 61E, 66C, 78
- Crimes Amendment (Sexual Offences) Act 2003 (NSW), Schedule 1 item 9
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), ss 141, 142

Cases
- Agius v The Queen; Abibadra v The Queen; Jandagi v The Queen; Zerafa v The Queen (2011) 80 NSWLR 486; [2011] NSWCCA 119
- Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48
- Director of Public Prosecutions (SA) v B (1998) 194 CLR 566; [1998] HCA 45
- Kennedy v R [2017] NSWCCA 193
- Little (a pseudonym) v R (2015) 44 VR 816; [2015] VSCA 62
- Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40
- R v Crawley [2014] EWCA Crim 1028
- R v Edwards [2009] HCA 20; 83 ALJR 717
- R v Jasper [2003] NSWCCA 186; 139 A Crim R 329
- R v McGee (2008) 102 SASR 318; [2008] SASC 328
- R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316
- R v Smith [1995] 1 VR 10
- Saraswati v The Queen (1991) 172 CLR 1; [1991] HCA 21
- TS v R [2014] NSWCCA 174
- Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77