Morton (a pseudonym) v The Queen

The case of Morton (a pseudonym) v The Queen involved an appellant who appealed against the refusal of a permanent stay of charges brought against him for nine counts of unlawful and indecent assault of a girl. The alleged offences occurred over a period of 53–56 years ago, with four complainants being the daughters of two of the appellant’s sisters. The trial judge had refused a permanent stay of the charges, and the appellant sought a review of that decision. The Court of Appeal was tasked with determining whether the refusal to grant a permanent stay was reasonably open.

The central legal issue before the Court of Appeal was whether the refusal to grant a permanent stay of the charges against the appellant was reasonably open. The appellant argued that the significant delay in bringing the charges, the death of key witnesses, including the appellant’s parents and the mother of three of the complainants, and the unreliability of the sole surviving witness, rendered the prosecution an abuse of process. The Court of Appeal was required to consider whether the judge’s refusal to stay the charges was within the range of reasonable decisions.

In examining the matter, the Court of Appeal considered the criteria for granting a stay under the Criminal Procedure Act 2009 and the relevant case law, particularly Hermanus v The Queen. The court found that the significant delay in bringing the charges, the death of critical witnesses, and the unreliability of the remaining witness due to advanced age and poor memory were compelling factors. These factors made it highly probable that a fair trial would not be possible. The Court of Appeal concluded that the refusal of a stay was not reasonably open and allowed the appeal, granting a permanent stay of the charges against the appellant.

The Court of Appeal allowed the appeal and granted a permanent stay of the charges, finding that the refusal to do so was not reasonably open. This decision highlights the importance of timely prosecution and the unavailability of key evidence in determining the fairness of a trial.