R v Clifford No. Sccrm-03-280

[2004] SASC 43

R v CLIFFORD
[2004] SASC 43

Court of Criminal Appeal:  Doyle CJ, Perry and Debelle JJ

1. DOYLE CJ             I ask Debelle J to give his reasons first.

2. DEBELLE J           The applicant was charged on information with one count of procuring an act of gross indecency and two counts of unlawful sexual intercourse which were counts 1, 2 and 3 of the information. On the morning the trial a nolle prosequi was entered in relation to count 2. After trial by jury the appellant was found guilty on counts 1 and 3.

3. The charge the subject of the first count was alleged to have occurred between 9 September 1989 and 8 September 1991 and the charge the subject of the third count to have occurred between 1 January 1996 and 3 December 1998.

4. At the trial the prosecutor led evidence of uncharged acts for the purposes of putting the counts in the information in context to assist in the understanding of the nature and development of the ongoing sexual relationship between the appellant and the complainant, to explain why the complainant was unable to fix precise dates, to explain why the complainant may have acquiesced and why the appellant was confident in continuing his conduct towards her, and to establish an alleged sexual attraction of the appellant to the complainant. The evidence of those uncharged acts related to conduct that occurred after the charge in count 1 and continued until some time after the charge in count 3.

5. Before the jury was empanelled an application was made to exclude the evidence of the uncharged acts and for severance of the two counts. In the alternative, the applicant applied for an order that the trial should be stayed as an abuse of process. Each of the applications was refused.

6. After his conviction the applicant applied for leave to appeal. Leave to appeal has been granted on a number of grounds including the grounds relating to the admissibility of the evidence of the uncharged acts and to the failure of the trial judge to sever the two counts in the information. However, leave to appeal was not granted against the refusal of the trial judge permanently to stay the trial as an abuse of process. The applicant seeks leave from this Court to appeal against the order refusing the stay.

7. The application must be considered against the fact that the applicant has obtained leave to appeal against the orders refusing to sever the trial in respect of counts 1 and 3 and to admit the evidence of the uncharged acts. The outcome of those appeals will determine whether the trial judge was correct in refusing to sever the trials and in admitting the evidence of the uncharged acts. If he was, the trial proceeded according to law and there is nothing which justifies a stay. If the trial judge erred, the Court of Criminal Appeal will state whether the appellant should be retried, whether there should be two separate trials, and the extent to which, if at all, evidence of uncharged acts could be led. It is clear, therefore, that the application for a stay is entirely superfluous. In addition, the power to grant a stay of criminal proceedings will only be exercised in exceptional circumstances. In my view there is no arguable ground which justifies granting leave to appeal against the order refusing a stay.

8. For these reasons I would dismiss the application.

9. However, the fact that this application has been dismissed does not prevent the applicant from applying to the Court of Criminal Appeal for a stay. The success of that application will of course turn on the manner in which the Court of Criminal Appeal deals with the issues in the appeal. In other words, it will be a question as to what proper relief should flow from the orders made by the Court of Criminal Appeal.

10. DOYLE CJ             I agree with the reasons given by Debelle J.

11. PERRY J                If the particularisation of the charges or either of them is ultimately held to be so deficient as to preclude a fair trial, it would be open to the Court of Criminal Appeal to quash the conviction and substitute a permanent stay. That would be an available remedy.

12. In those circumstances it is sufficient if the substantive grounds of appeal are set out in the notice of appeal. That the notice of appeal is confined to substantive grounds would not fetter the Court of Criminal Appeal with respect to the nature of relief it may see fit to grant should any ground be made out.

13. I agree with the order suggested by Debelle J.

14. DOYLE CJ             The order of the court is that the application for leave to appeal be refused.