R v Blackett

[2018] NSWCCA 114

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v Blackett [2018] NSWCCA 114
Hearing dates:	18, 30 May 2018
Date of orders:	07 June 2018
Decision date:	07 June 2018
Before:	Leeming JA at [1]; Button J at [57]; Fagan J at [58]
Decision:	1. Appeal allowed. 2. Set aside the stay ordered by the District Court on 1 March 2018. 3. Remit the proceedings to the District Court for determination in accordance with law.
Catchwords:	CRIMINAL LAW – procedure – permanent stay – stay granted by court below on basis of weakness of Crown case – whether primary judge had applied correct test – whether “incurable weakness” in Crown case such that prosecution was “foredoomed to fail” – consideration of exceptional nature of jurisdiction – appeal allowed, stay discharged and matter remitted to District Court for trial
Legislation Cited:	Crimes Act 1900 (NSW), 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 Cited:	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
Texts Cited:	A Choo, Abuse of Process and Judicial Stays of Criminal Proceedings (2nd ed, 2008, Clarendon Press) D Ormerod and D Perry (eds), Blackstone’s Criminal Practice 2017 (Oxford University Press) C Corns, “Judicial Termination of Defective Criminal Prosecutions: Stay Applications” (1997) 16 University of Tasmania Law Review 75
Category:	Principal judgment
Parties:	Regina (Appellant) Brent Blackett (Respondent)
Representation:	Counsel: B Baker (Crown) S Hall (18 May), S Goodwin (30 May) (Respondent)   Solicitors: Solicitor for Public Prosecutions (NSW) Legal Aid Commission of NSW
File Number(s):	2016/169861
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: Nil Date of Decision: 1 March 2018 Before: His Honour Judge M Williams SC DCJ File Number(s): 2016/169861

Judgment

1. LEEMING JA: This is an appeal as of right by the Crown, pursuant to s 5F(2) of the Criminal Appeal Act 1912 (NSW), from an interlocutory judgment of the District Court ordering a permanent stay on counts 6-20 of an indictment. Each of those counts charged the accused, Mr Brent Blackett, with an offence of sexual intercourse with a person above the age of 10 years and under the age of 16 years who is under the authority of the offender, pursuant to (former) s 66C(2) of the Crimes Act 1900 (NSW). Those counts were the only counts proceeding to trial. Guilty pleas had been entered in relation to counts 1-5, which charged Mr Blackett with offences of indecent assault and sexual intercourse with a person above the age of 10 years and under the age of 16 years, pursuant to (former) ss 61E(1) and 66C(1). There was a single female complainant, who cannot be named, and who was 13 or 14 at the time. Counts 1-5 concern a period between October 1987 and February 1988; counts 6-20 are alleged to have occurred between May 1988 and November 1988.

2. I have concluded that the primary judge applied an incorrect legal test in granting a permanent stay to counts 6-20 of the indictment, and that on the correct test, a permanent stay should not have issued. It should be said that the primary judge was asked to rule on that application immediately prior to the commencement of the trial, which his Honour did, and that in doing so, his Honour was not given the assistance to which he was entitled.

3. It should also be said that the disposition of this appeal has been assisted by the constructive approach of counsel for both parties, who agreed (a) that the jurisdiction was available, (b) as to the test to be applied and (c) that, in the event that there was error and this Court concluded that a stay should not be granted, nothing should be said as to the construction of former s 66C(2) of the Crimes Act.

Factual background

4. The matter proceeded at first instance by tendering the procedural history and two statements made by the complainant, one made in October 2014 (before charges under s 66C(2) had been laid), and a second supplementary statement made in November 2016. Also tendered were short statements by the complainant’s mother and older brother (the complainant’s father died in 2001), and extracts of the transcript of an interview between investigating detectives and the accused. Presumably, all these documents had been supplied by the Crown in accordance with its obligations under ss 141 and 142 of the Criminal Procedure Act 1986 (NSW).

5. The following summary is based upon the witness statements and other materials in the Crown brief of evidence. The complainant was born in Queensland in April 1974, and spent much of her childhood travelling with her parents. In her first statement the complainant said that her parents “could probably be described as hippies, part of the 60s generation which wanted to see the world, discover themselves and live the simple life.”

6. The relevant events occurred from late 1987 to 1988. During that time, the complainant maintained what purport to be contemporaneous written journals detailing her daily life, including accounts of her sexual relationship with the accused.

7. In May 1987, the complainant and her mother moved into a share house in Bondi. At that time there were six other people occupying the house, including the accused, who was born in January 1959. The complainant shared a room with her mother. Her father and brother later also moved into the room.

8. The occupants of the house all practised an Eastern “Sannyasin” philosophy, associated with a movement then led by Bhagwan Shree Rajneesh. The accused was known to the complainant as “Nandano”, his Sannyasin name; the complainant was also given a Sannyasin name. The occupants of the house appear to have lived a communal life in which drug use, sexual freedom and a non-material lifestyle were encouraged.

9. By pleading guilty to the first 5 counts in the indictment, concerning events occurring from October 1987 to 7 February 1988, the respondent has admitted to committing four indecent assaults and one act of sexual intercourse with the complainant when she was 13 years old and he was 27 or 28 years old.

10. Later in February 1988, the complainant’s family moved from the Bondi house to a unit in Rose Bay. While some of the complainant’s belongings were moved to the Rose Bay unit at this time, she recalled that she mainly stayed with the accused in his room at the Bondi house.

11. The counts which are the subject of this appeal all concern events occurring after April 1988, when the complainant was 14. Each of those counts requires the Crown to establish acts of sexual intercourse between the complainant and accused at a time when she was under his authority. In the written submissions supplied on behalf of the accused at the hearing of the stay application in the District Court and in this Court, it was not denied that the alleged instances of sexual intercourse occurred; rather, he submitted that the charges could not succeed because there was no evidence that they occurred at a time when the complainant was under his authority.

12. The sexual intercourse alleged in counts 6-20 of the indictment may be divided chronologically into three periods, when the complainant and the accused were living (a) in a room in the Bondi house, (b) in the “granny flat” of that house and (c) in a unit in Bellevue Hill of which the pair were the sole occupants. Immediately before moving to Bellevue Hill, the complainant said that she stayed with her mother at her Rose Bay unit for about a fortnight.

13. Counts 6-11 concern the period May to June 1988, when the complainant and accused were living together in a room at the Bondi house. Counts 12-16 concern July to September 1988, when the complainant lived with the accused in a “granny flat” at the same premises. The complainant’s evidence was that during these periods, the accused “paid for groceries, bills, rent etc”, and “the residents put money into a kitty and shared the food.” The complainant had intermittent contact with her mother throughout this period; in particular, her evidence was that “if anything legal/official needed to be done she would do it, i.e enrol me in school.” Her evidence was also that she felt that “no one was responsible for [her] day to day care”. The complainant had a source of some income in the form of an inheritance which provided her with about $500 a year, but her evidence was that “it was just taken for granted that [the accused would] support me.”

14. The Crown accepted on appeal that the primary judge did not err in respect of count 17, which concerned a time when the complainant was living with her mother in Rose Bay.

15. In October 1988, the complainant and the accused moved into a unit in Bellevue Hill. Counts 18-20 concern events at this address. As at the Bondi house, the accused paid for the groceries, bills and rent. The complainant said that the respondent “managed things like lease arrangements for the unit.” According to the complainant’s principal statement, in January 1989 the accused told the complainant that “he wanted his space”, upon which she moved to another Sannyasin share house with her mother at Bondi Beach.

16. The complainant first contacted police in 2012, prompted by her reaction to her current partner finding her diaries from the time.

Procedural background

17. Proceedings were commenced in June 2016 pursuant to a Court Attendance Notice containing 23 offences contrary to s 66C(1). In October 2016, 22 of those sequences were withdrawn, apparently after attention was drawn by the defence to the limitation period in what was then s 78 of the Crimes Act (the same provision as was critical in Saraswati v The Queen (1991) 172 CLR 1; [1991] HCA 21). At some stage in early 2017, and no later than 7 March 2017, a series of further Court Attendance Notices issued, containing offences described as sequences 24-42. Those sequences included 15 counts alleging sexual intercourse with the complainant, being a person between 10 and 16 years of age, in each case “under the authority of the said Brent Blackett by reason of Brent Blackett being in charge of her care and supervision”, contrary to s 66C(2). Those sequences ultimately became counts 6-20 of the indictment which was presented before the primary judge.

18. The current form of s 66C is quite different from the form it took in 1987 and 1988, reflecting changes made by Schedule 1 item 9 of the Crimes Amendment (Sexual Offences) Act 2003 (NSW). At relevant times, s 66C of the Crimes Act provided:

“66C Sexual intercourse – child between 10 and 16

(1) Any person who has sexual intercourse with another person who is of or above the age of 10 years, and under the age of 16 years, shall be liable to penal servitude for 8 years.

(2) Any person who has sexual intercourse with another person who:

(a) is of or above the age of 10 years, and under the age of 16 years, and

(b) is (whether generally or at the time of the sexual intercourse only) under the authority of the person,

shall be liable to penal servitude for 10 years.”

19. At relevant times, s 61A(5) defined the additional element of authority in the aggravated offence created by s 66C(2) as follows:

“(5) For the purposes of sections 61D-66E, a person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person.”

20. Consent is not a defence to the offences created by s 66C(1) and (2).

21. Both Crown and defence had supplied written submissions to the primary judge on the application. The defence sought a permanent stay on two quite distinct bases. Paragraphs 4-7 of the defence submissions were as follows:

“4. This is an application for a permanent stay in relation to the 15 counts (6-20 on the indictment) brought pursuant to s 66C(2). It is respectfully submitted that the intention of the Director in laying the charges pursuant to s 66(2) is to defeat the operation of the limitation period in what was then s 78 of the Act.

5. There is no evidence in the brief that has been served to date which would found a basis for a submission that the complainant was under the authority of the accused. It can only be that the Crown relies upon the difference in the ages of the complainant and the accused.

6. Accordingly, it is submitted that a continuation of these proceedings would result in a “‘misuse of the Court process’ which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial” per Mason CJ in Jago v The District Court of New South Wales (1989) 168 CLR 23 at [13].

7. The misuse of the Court process is submitted to be the reliance by the Crown upon an aggravated form of a number of charges for which there is scant, if no evidence, in circumstances where the Director is statute barred from proceeding under a different section. It is noted that the Crown had not sought to proceed on the aggravated charges until the limitation period was brought to their attention and the original charges were withdrawn. The procedural history of the matter is set out in the affidavits of my instructing solicitor Mr Patrick Carter and the solicitor with carriage of the matter at committal, Ms Shalini Perera.”

22. It will be seen that those submissions combined (a) the allegation that the prosecution was for a purpose said to amount to an abuse of process with (b) the proposition that there was “no evidence” (paragraph 5) or alternatively “scant, if no evidence” (paragraph 7) in support of the element of the offence that the complainant was under the authority of the accused. The former is a well-established species of abuse of process; the latter is very modern.

23. When the application was heard, counsel for Mr Blackett came close to accepting that the only question was whether there was evidence of authority (transcript, 1 March 2018, 13.19-38). The primary judge was, with respect, entirely correct to say that “there is no suggestion of bad faith on the part of the Director and ultimately Ms Hall seemed to concede that the true question that arises on the application is that set out in paragraph 5 of her submissions, namely that there is no evidence in the brief that has been served which would found a basis for a submission that the complainant was under the authority of the accused.” In oral submissions in this Court on 18 May, counsel acknowledged that this aspect of the claim, as originally formulated, could be put to one side.

24. During the course of the hearing of the appeal, attention was drawn to a matter flagged in the Crown’s written submissions, although outside the scope of the notice of appeal, namely, whether the primary judge had applied the correct test for granting a permanent stay. The Crown amended its notice of appeal, without opposition, to raise this as a separate ground. It was in those circumstances that the parties agreed that, if this Court determined that a stay should not have been ordered, it should not express views on the construction of s 66C(2), and on that basis the Court did not hear full oral argument on the question of construction.

25. The Crown sought, and was granted, an opportunity to supplement its submissions in support of the new ground of appeal. The same opportunity was given to the respondent. Both parties supplied helpful written submissions. Both also applied for a further oral hearing, which request was granted.

The test for granting a permanent stay of an indictment

26. In their written submissions before the primary judge, Crown and defence had agreed as to the applicable principles governing the application for a permanent stay. The primary judge was taken to this Court’s decisions in TS v R [2014] NSWCCA 174 at [1] and [61]-[64] and Kennedy v R [2017] NSWCCA 193. The former was a case where a 40 year delay, coupled with evidence of significant prejudice (arising inter alia from significant media reporting of other offending conduct, the advanced age of the accused, and uncontested expert evidence of the unreliability of memories) brought about the “unacceptable injustice or unfairness” to which the High Court had referred in R v Edwards [2009] HCA 20; 83 ALJR 717 at 720. The latter is of at most peripheral relevance (indeed, counsel candidly acknowledged that the reference had been incorrect).

27. Those authorities were not, and are not, apposite. To the contrary, the essential question is whether the applicant has discharged what is ordinarily a heavy onus of establishing that the prosecution was “foredoomed to fail”.

28. The notion of a permanent stay of a prosecution dates from no later than the 1890s in England: see A Choo, Abuse of Process and Judicial Stays of Criminal Proceedings (2nd ed, 2008, Clarendon Press) ch 1. However, what is presently relevant is the relatively new ground for a permanent stay, namely, that the prosecution is “foredoomed to fail”: see C Corns, “Judicial Termination of Defective Criminal Prosecutions: Stay Applications” (1997) 16 University of Tasmania Law Review 75 at 77. It may be that this basis for a permanent stay is not known in the United Kingdom. It is not mentioned, for example, in the section on “Abuse of Process: The Power to Stay Proceedings” in Blackstone’s Criminal Practice 2017 (Oxford University Press), pp 1350-1371, nor in the description of the jurisdiction in R v Crawley [2014] EWCA Crim 1028 at [17].

29. In Barton v The Queen (1980) 147 CLR 75 at 96-97; [1980] HCA 48, Gibbs CJ and Mason J, with whom Aickin J agreed, noted that the High Court had not yet had to decide whether the power to stay criminal proceedings extended to cases where the prosecution did not have reasonable grounds, but said that the power existed.

30. In Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77, the joint judgment confirmed, in civil proceedings, that an abuse of process would be made out, irrespective of the propriety of the plaintiff’s purpose, “if they can be clearly seen to be foredoomed to fail.”

31. This Court applied Walton v Gardiner in a criminal case, setting aside a permanent stay, in R v Jasper [2003] NSWCCA 186; 139 A Crim R 329. Mason P, with whom Dowd and Adams JJ agreed, said at [19] that:

“To stay proceedings permanently on the basis of abuse of process because the proceedings are incapable of success requires that it be shown that the proceedings “can be clearly seen to be foredoomed to fail” (Walton at 393 per Mason CJ, Deane J and Dawson J) or that they will “inevitably and manifestly fail” (at 411 per Brennan J with whom Toohey J agreed). This is a high threshold.”

32. Substantially the same test was applied by the Appeal Division of the Supreme Court of Victoria in R v Smith [1995] 1 VR 10. The two leading judgments were given by Brooking J and Byrne J. The differences between the two appear to be merely of emphasis, and in light of later authority and the agreed position of the parties, it will suffice to refer to Byrne J’s judgment.

33. Byrne J observed at 28 that the application of principles developed in civil litigation to the criminal law posed further difficulties:

“First, there are no pleadings properly so called. This means that the practice of determining the prospect of success of the prosecution with little or no reference to the available evidence cannot be adopted. Secondly, it cannot be ignored that the Crown in a criminal trial does not stand in exactly the same position as a plaintiff in civil litigation. The wisdom of a decision to prosecute or to prosecute for a specific offence is not, properly speaking, a matter for the court.”

34. Byrne J expressed a test at 28-29:

“In my view, in a case such as the present, the power to order a permanent stay of a criminal proceeding before the court should be limited to the case where it is plain beyond argument that the prosecution case suffers from some incurable vice. Such a vice must be readily apparent and clearly fatal to the prospect of success of the prosecution.”

35. The insusceptibility of the prosecutorial discretion to review was emphasised by a Full Court of the Supreme Court of South Australia in R v McGee (2008) 102 SASR 318; [2008] SASC 328, notably, by Doyle CJ at [87]:

“The reason why the test for a stay of proceedings on this basis must be a stringent one is apparent. If it were not, the Court would be interfering with the decision of the DPP to institute proceedings, and would begin to assume the role of a supervisory authority in relation to those decisions. It is for the DPP to decide whether a charge should be laid, and what charge should be laid. It is the function of the trial judge to preside over that trial, the jury returning its verdict on the charges (unless it is a trial by judge alone). The trial of a charge is not to be precluded because, in the opinion of the presiding judge, the case is a weak one, or even because in the opinion of the trial judge the case is likely to fail. As I said, the function of the Court is to hear the charge, unless there are truly exceptional circumstances that warrant the Court staying the proceedings at the outset.”

36. In Agius v The Queen; Abibadra v The Queen; Jandagi v The Queen; Zerafa v The Queen (2011) 80 NSWLR 486; [2011] NSWCCA 119, Johnson J, with whom Tobias AJA and Hall J agreed, addressed the principles at [15]-[19]:

“The principles concerning abuse of process to be applied on an application such as this are not in doubt.

It has been emphasised that the power to stay permanently a criminal prosecution will be used only in most exceptional circumstances: Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23 at 31. The onus of satisfying the Court that there is an abuse of process lies upon the party alleging it and the onus is a heavy one: Williams v Spautz [1992] HCA 34; 174 CLR 509 at 529.

Although the jurisdiction to stay proceedings as an abuse of process is wide ranging, it is not without limits. It has been said that the discretion cannot be exercised to stop proceedings because the evidence against an accused person is weak or because (if it be the case) the Bench disapproves of the prosecution: R v Chairman, County of London Court of Sessions; Ex parte Downes [1954] 1 QB 1 at 6; R v Petroulias (No. 1) [2006] NSWSC 788; 177 A Crim R 153 at 174 [63].

The Applicants submit that the second count should be permanently stayed on the basis that it is foredoomed to fail: Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 393, 411. To succeed in an application for a permanent stay on this basis, it is necessary for the Applicants to show that the proceedings ‘can be clearly seen to be foredoomed to fail’ (Walton v Gardiner at 393 per Mason CJ, Deane and Dawson JJ) or that they will ‘inevitably and manifestly fail’ (Walton v Gardiner at 411 per Brennan J).

Although these statements in Walton v Gardiner were made in the context of a medical disciplinary case, this formulation of the principles of abuse of process has been applied where a permanent stay is sought with respect to the trial of offences being prosecuted on indictment: R v Jasper [2003] NSWCCA 186; 139 A Crim R 329 at 335 [18], R v Petroulias (No. 1) at 164-165 [26], 173-179 [55]-[85]. If the application succeeds, the operation of the criminal justice system will not proceed further with respect to the second count. There will be no trial at which the trial Judge may be called upon to determine whether the Applicants have a case to answer, applying the principles in Doney v The Queen [1990] HCA 51; 171 CLR 207. All of this underlines the exceptional nature of the remedy which the Applicants seek.”

37. The Victorian Court of Appeal returned to the issue in Little (a pseudonym) v R (2015) 44 VR 816; [2015] VSCA 62. Lasry and T Forrest AJJA said at [73]-[74]:

“The legal principles which apply to applications for a permanent stay of criminal proceedings make it clear that a stringent test must be applied. To stay a trial as an abuse of process is an exceptional course and should be exercised ‘sparingly and with the utmost caution.’ There must be ‘... a fundamental defect which goes to the root of the trial.’

In a case where the basis for the application is that the prosecution is foredoomed to fail, the test is more onerous than would apply on the resolution of a submission of no case to answer at the conclusion of a prosecution case at trial. The failure of some essential aspect of the case must be inevitable. A stay application on the basis that the prosecution is ‘foredoomed to failure’ is not an anticipatory no-case submission. It is much more than that — to be successful the applicant must demonstrate positively that the prosecution case is hopeless, plainly so and condemned to remain that way. We consider that it involves much more than establishing a good arguable no-case submission.” [citations omitted]

38. Their Honours agreed at [76] with the formulation of the test by Byrne J in R v Smith [1995] 1 VR 10 reproduced above. Priest JA dissented, but only on the application of principle to the facts of that appeal. His Honour accepted the formulation applied by the majority: at [58]-[60].

39. Most of those statements were cited with evident approval by this Court in R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316 at [14]-[24]. Bathurst CJ observed at [25]:

“The decision of the trial judge to grant a stay, in circumstances where he stated that many of the considerations relied upon by the Crown created an arguable case for concluding that the accused owed a duty of care, but on the balance, a duty did not exist, sits uneasily with the approach mandated by these authorities. It is true that the trial judge was determining a question of law, but, having regard to the way that the Crown put its case, the answer to the question depended to a significant extent on the facts relied on by the Crown. In these circumstances, the stringent test laid down in the authorities should have been applied.”

40. Simpson JA stated at [138] that a stay of a prosecution was “an exceptional remedy, available (essentially) only where it could be seen that the prosecution cannot succeed.”

41. Those authorities recognise the tension between the power to stay a prosecution on the basis that it will fail, and the principle that the decision to prosecute, and as to the particular charge to be laid, are generally insusceptible of curial review. The latter was reaffirmed in Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 (see especially at [20], [25] and [68]). The distinction was drawn by Gaudron, Gummow and Hayne JJ in Director of Public Prosecutions (SA) v B (1998) 194 CLR 566; [1998] HCA 45 at [21]:

“The line between, on the one hand, the decisions whether to institute or continue criminal proceedings (which are decisions the province of the executive) and on the other, decisions directed to ensuring a fair trial of an accused and the prevention of abuse of the court’s processes (which are the province of the courts) is of fundamental importance.”

42. It may readily be seen that reconciling the tension between the unreviewability of the prosecutorial discretion to institute proceedings and lay particular charges, and the jurisdiction to grant a stay in order to prevent an abuse of the court’s processes, may be far from straightforward. But there can be no doubt that the remedy of a permanent stay is an exceptional one. There is an important public interest in the ordinary processes of the criminal law resolving criminal prosecutions. As seen from the passages extracted above, the exceptionality of the jurisdiction has been framed in terms of “plain beyond argument”, “truly exceptional circumstances”, “only in the most exceptional circumstances” and “sparingly and with the utmost caution”.

43. Further, the authorities also disclose that what is required is not merely a gap in the evidence sustaining an element of the charge, but demonstration in advance of the trial that the gap is incurable. The language used to describe the heavy burden of demonstrating an inevitable failure varies: “foredoomed to fail”, “inevitably and manifestly fail”, “some incurable vice”, “the prosecution case is hopeless, plainly so and condemned to remain that way”, but the underlying principle is clear.

The test applied by the primary judge

44. In this Court, the parties agreed as to the formulation of principle in Moore and Little. The debate between them was whether the primary judge could be said to have applied that principle.

45. The primary judge, who had not been directed to any of the decisions referred to above, gave an ex tempore judgment as had been requested, and proceeded on the view, based on what he stated was “a concession by the Crown” that “if I take the view that there is no evidence or insufficient evidence of authority then the application for a stay should be granted”. His Honour’s dispositive reasoning was as follows:

“32. In my view, the submissions by Ms Hall should be upheld. The evidence demonstrates no more than a sexual relationship and provision of some financial support by the accused at the relevant times. There is no evidence of responsibility or authority relevantly, being exercised by the accused over or on behalf of the complainant at the relevant times. The mere fact that they were apparently living together in what may be described as a domestic relationship is insufficient to establish the aggravating circumstance in my view.

33. I appreciate that that is a view about which minds may differ, however that is that conclusion to which I have come on the evidence before me and I therefore grant the orders sought by the accused in relation to counts 6 to 20, namely a permanent stay of those proceedings.”

46. At both hearings in this Court, counsel for the respondent submitted, as persuasively as the reasons permitted, that notwithstanding that the primary judge had not been provided with the apposite authorities, in substance his Honour had applied the correct test. However, I cannot accept the respondent’s submission that his Honour’s reasoning amounted in substance to determining whether the prosecution was irretrievably foredoomed to failure, for these reasons.

1. First, his Honour did not purport to apply such a test.

2. Secondly, his Honour had not been taken to any of the authorities in which such a test was stated or applied.

3. Thirdly, although his Honour referred to the insufficiency of evidence, his Honour at no stage purported to hold that the gaps in the evidence were irremediable, or that this was an exceptional and clear case.

4. Fourthly, his Honour appears to have approached the position as if the question were whether the accused was entitled to a directed verdict.

5. Fifthly, his Honour’s express reference to his being “a view about which minds may differ” confirms that his Honour was applying a very different test from that formulated in the authorities, which emphasise the requisite exceptionality and plainness beyond argument.

47. Accordingly I conclude that his Honour’s discretion miscarried.

The application of the correct test, and the resolution of this appeal

48. On the application of the test accepted by the parties to be correct, I consider that this is not an exceptional case where the court should prevent the ordinary determination of the prosecution.

49. Whether the sexual intercourse charged in any or all of the counts took place at a time when the complainant was “under the authority” of the respondent is not something which is foredoomed to be answered negatively. It is a conclusion which will be considered in light of the evidence as a whole. There is inevitably some uncertainty as to how the evidence will emerge, bearing in in mind that:

1. no evidence at all has been adduced as yet, and the complainant may or may not adhere to all or part of the statements which she has made.

2. it is impossible to say what evidence will be given in the event that the complainant is cross-examined; while cross-examination may weaken aspects of the Crown case, it may also strengthen other aspects; and

3. it is not impossible that additional witnesses may emerge.

50. The ultimate question will be whether the Crown has established, to the criminal standard, that the complainant was under the authority of the accused, in the sense of being in the care or under the supervision of the accused. That question falls to be determined in light of a varying factual background.

51. All of the counts (save for 17 which is not pressed) arise from a time when the complainant was living in a different household from her parents, in an intimate relationship with the accused. However, there are important variations over the period. Some of the charges turn on the authority of the accused over the complainant when they were both members of a shared household (for counts 6-11, in a room, for counts 12-16, in the granny flat). Others (counts 18-20) turn on his authority when they lived as the sole occupants of the Bellevue Hill unit, of which seemingly the respondent had exclusive legal possession pursuant to a lease in his name.

52. Further, save for the fact that on the Crown case the complainant’s parents were living elsewhere throughout this period, what precisely was their role (and indeed, what was their whereabouts) throughout this time is relevant to the issue, and is far from clear on the basis of the material to date.

53. It may be accepted that, so far as appears from the witness statements which have been served, this is far from a strong Crown case. The respondent stressed that the present case differed from other historical sexual abuse cases, in two respects. First, it was not a case which turned greatly on credibility. Secondly, the procedural history had meant that the complainant’s second statement specifically addressed issues of authority, custody and care, such that it could confidently be concluded that the Crown case could rise no higher than had been served.

54. It is true that those matters make this Crown case different from many. Even so, the difficulty faced in an application for a permanent stay in advance of any evidence being led remains as outlined above. In particular, there can be no assurance on the basis of the statements served that the Crown case will not strengthen when witnesses are called. And it is to be recalled that the test in the authorities for a remedy which takes a prosecution away from the ordinary tribunal of fact is that it be shown that the case is irretrievably doomed to fail.

55. This is not an occasion for the exercise of the exceptional jurisdiction to grant a permanent stay. It cannot be said that this is a case where “the prosecution case is hopeless, plainly so and condemned to remain that way”. Although the facts are unusual, it is not a case where it can so confidently be concluded that the Crown “can be clearly seen to be foredoomed to fail” or “will inevitably and manifestly fail” (to cite the formulations approved and applied by this Court in Jasper at [19] and Agius at [18] reproduced above) such that the prosecution should be stayed rather than left to proceed in accordance with the ordinary processes of the law.

56. For those reasons, the appeal should be allowed on the basis of the ground added during the hearing of the appeal, the permanent stay ordered on 1 March 2018 set aside, and the proceedings remitted to the District Court for determination in accordance with law. Although the Crown concedes that count 17 should not go to trial, rather than leaving in place to that extent the order made by the primary judge, it is preferable to set aside the order in its entirety (which is the relief sought in the amended notice of appeal) and for the Crown to present an amended indictment reflecting that concession. In accordance with the agreed position of the parties, nothing need be said as to the construction of s 66C(2).

57. BUTTON J: I agree with Leeming JA, and with the additional analysis of Fagan J.

58. FAGAN J: I agree with Leeming JA. I add these observations concerning the setting of this stay application in the criminal process. As ultimately argued in the District Court this was not a claim for a stay on a ground such as abuse of process for a collateral purpose, or incurable unfairness to the respondent (through delay, for example), or prosecutorial action tending to bring the law into disrepute. The stay application was about whether the Crown can prove an element of the offences, namely, that the complainant was under the accused’s authority during the charge period. This depends upon what primary facts a jury could find concerning the relationship and what conclusions they could draw from those facts about the ultimate issue of authority. The application was entirely evidence-dependent.

59. However, it being a pre-trial application, the learned judge was asked to decide this issue of sufficiency of proof when the content of the Crown evidence had not been defined by being led and tendered. His Honour had before him only witness statements on the prosecution brief and documentary evidence which the Crown expects its witnesses to authenticate.

60. It was premature and procedurally inappropriate for the respondent to attempt to have the issue determined on a pre-trial application for a permanent stay. The application did not proceed upon agreed facts. Only when the trial has progressed to closure of the Crown case will there be a finite body of evidence eligible to be examined by a judge (namely, the trial judge) in order to rule whether it is capable of satisfying a jury beyond reasonable doubt on the element of authority.

61. The authorities cited by Leeming JA establish that, when a stay is sought on the basis that there is no evidence or scant or insufficient evidence of an element of the offence, the test to be applied is whether the alleged deficiency of proof is an “incurable vice” (R v Smith at [29] (Byrne J)) such that the Crown case is “condemned to remain” plainly hopeless (Mark Little (a pseudonym) v R at [74] (Lasry and Forrest AJJA)).

62. That stringent requirement cannot be satisfied, with respect to an evidence-dependent issue such as was raised here, from review of witness statements which record merely what it is expected the Crown evidence will be. At trial a witness may give answers additional to or different from his or her statement, either in chief or in cross-examination. The Crown may call an additional witness or tender an additional document. Insufficiency of proof suggested in advance by the content of the statements is not “incurable” or “condemned to remain”, because the Crown case has not been presented and closed.

63. The point may be emphasised by contrasting this case with a prosecution in which, for example, it would be essential for the Crown to prove that the accused did not hold a certain licence. If it should be demonstrated on a stay application, from indisputable official records, that the licence was held, this would be an “incurable vice” of the prosecution. The charge would be “foredoomed to fail” and “condemned to remain” plainly hopeless.

64. The possibility that the evidence ultimately led and/or tendered by the Crown at trial may differ to some extent from what presently appears in the prosecution brief means that, even if a stay were granted, it could not be a permanent stay. This highlights the unsuitability, even futility, of the stay application as a procedure for raising the issue which was agitated before the learned judge. An order for a stay subject to it being lifted if the Crown should in the future be in a position to adduce additional or different evidence would be the most that could be asked for. That would provide the accused with no finality.

50. The above considerations all point to the close of the Crown case at trial as being the proper stage at which a judge should be asked to consider whether the evidence is capable of proving beyond reasonable doubt an element or fact of the nature which is in issue in these proceedings. That is to say, such an evidence-dependent issue should only be raised by way of application for a directed acquittal. Leeming JA’s reasons refer to long-standing statements of principle which deprecate intrusion of the court into decisions for which prosecuting authorities are responsible. A stay application upon an issue of fact and of proof such as that raised in this case invites a judge of the trial court to assess a Crown brief before arraignment.

51. The reservation of stays upon evidentiary grounds to exceptional cases is a rule designed to preclude judicial involvement in this prosecutorial function. This case is not exceptional in the relevant sense because, inherently in the nature of the fact in issue and the type of proof the Crown intends to adduce, it could not be said before the close of the Crown case that it is foredoomed to fail or that it is irreparably deficient and condemned to remain hopeless.

52. I agree that orders as proposed by Leeming JA should be made.

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Decision last updated: 16 July 2019