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Court of Criminal Appeal 11 September 2019

McIver v R

[2019] NSWCCA 214

Sexual offences
CRIMINAL LAW NO HOUSE V THE KING ERROR DEMONSTRATED LEAVE TO APPEAL REFUSED

Citation: McIver v R [2019] NSWCCA 214
Court: NSW Court of Criminal Appeal
Date: 11 September 2019
Judges: Gleeson JA, Johnson J, Price J

Background

The applicant, an 80-year-old former Salvation Army officer, faced three separate indictments containing 20 charges across nine complainants. The charges alleged sexual and physical offences committed against young male residents of a boys' home in Sydney between 1968 and 1974, when the complainants were aged between six and 14 years.

Charged in November 2016, the applicant applied to the District Court for a permanent stay of all three trials. The stay application was heard by Judge Whitford SC, who refused it on 9 July 2019. The Crown later agreed to the first trial proceeding as a judge-alone trial under the Criminal Procedure Act 1986.

The applicant then sought leave to appeal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912, challenging the District Court's refusal to grant the permanent stay. The Court of Criminal Appeal heard the leave application on 24 July 2019 and refused it that day, with reasons published separately on 11 September 2019.

  • Whether the District Court erred in refusing to grant a permanent stay of criminal proceedings for historical sexual offences alleged to have been committed 45 to 51 years earlier
  • Whether the primary judge gave insufficient weight to the prejudice arising from delay, including the death of witnesses, loss of records, the applicant's age and health, and the impact of the Royal Commission into Institutional Responses to Child Sexual Abuse
  • Whether the primary judge focused unduly on the public interest in conviction, rendering his exercise of discretion legally flawed
  • Whether the primary judge had regard to an irrelevant matter (specifically, references to the Pell proceedings)
  • Whether the primary judge failed to have proper regard to the directions available to reduce forensic disadvantage to the applicant, including under s 165B of the Evidence Act 1995
  • Whether the Court of Criminal Appeal should grant leave to appeal an interlocutory decision of the District Court

Decision

The Court of Criminal Appeal refused leave to appeal, with all three judges agreeing in the outcome. Johnson J (with whom Gleeson JA and Price J agreed) delivered the substantive reasons.

The Court found no House v The King error in the primary judge's exercise of discretion. That is, the applicant failed to demonstrate that the District Court made an error of law, acted on a wrong principle, allowed extraneous or irrelevant matters to guide it, mistook the facts, or failed to take into account material considerations. The Court found it was open to Judge Whitford SC to refuse the permanent stay on the evidence and arguments placed before him.

On the question of delay and associated prejudice, the primary judge had acknowledged that the alleged offences were very old and that the applicant had inevitably lost some forensic opportunities. However, the primary judge concluded that available directions to the jury (or judge alone) regarding delay and its consequences would sufficiently ameliorate the prejudice. The Court of Criminal Appeal found no error in that approach.

Regarding s 165B of the Evidence Act 1995, which replaced the common law Longman warning regime, the applicant's senior counsel accepted that the legislative change itself did not create unfairness. The Court noted that the applicant was entitled to a fair trial according to law, which included the operation of s 165B, and detected no error in the primary judge's treatment of the directions question.

Orders Made

  • Leave to appeal under s 5F of the Criminal Appeal Act 1912 refused.

Key Takeaways

  • A permanent stay of criminal proceedings remains a remedy of last resort. The applicant must demonstrate that proceeding to trial would be so unfair as to constitute an abuse of process, and mere prejudice from delay does not automatically establish that threshold.

  • No error was established in the primary judge's balancing of fairness to the accused against the legitimate public interest in the disposition of serious criminal charges, even where alleged offences date back more than 45 years.

  • The Court of Criminal Appeal confirmed that available judicial directions addressing the forensic disadvantages of delay, including those now governed by s 165B of the Evidence Act 1995 rather than the common law Longman regime, remain a relevant factor a court may consider when assessing whether a permanent stay is warranted.

  • Establishing House v The King error is the applicable standard on an appeal against an exercise of discretion. Demonstrating that a different outcome was also open to the primary judge is insufficient; the applicant must show the discretion was exercised according to a wrong principle or that a specific identifiable error occurred.

  • Prejudice arising from delay, the death of witnesses, loss of records, and the advanced age and health of an accused person are all relevant considerations in a stay application, but the Court of Criminal Appeal found these matters did not, individually or cumulatively, compel a grant of stay in the circumstances of this case.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), s 132(2)
- Evidence Act 1995 (NSW), s 165B
- Evidence Act 2008 (Vic), s 165B

Cases:
- House v The King (1936) 55 CLR 499
- Jago v District Court (NSW) (1989) 168 CLR 23
- Longman v The Queen (1989) 168 CLR 79
- Walton v Gardiner (1993) 177 CLR 378
- Williams v Spautz (1992) 174 CLR 509
- Dupas v The Queen (2010) 241 CLR 237
- The Queen v Edwards (2009) 83 ALJR 717
- TO v The Queen (2017) 265 A Crim R 191
- R v King (2003) 59 NSWLR 472
- R v WRC (2003) 59 NSWLR 273
- Hermanus (a Pseudonym) v R (2015) 44 VR 335
- Shannon (A Pseudonym) v R [2019] VSCA 27
- R v Hatfield [1999] NSWCCA 340
- R v Pike [2000] NSWCCA 347
- R v McCarthy (NSWCCA, 12 August 1994)