R v H

Case [2002] NSWCCA 355 28 August 2002

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v H [2002] NSWCCA 355

FILE NUMBER(S):
60666/01

HEARING DATE(S): 20 May 2002

JUDGMENT DATE: 28/08/2002

PARTIES:
R (NSW)
H (Applicant)

JUDGMENT OF: Ipp AJA Dunford J Bergin J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/51/0134

LOWER COURT JUDICIAL OFFICER: Morgan DCJ

COUNSEL:
RA Hulme (Crown)
P Segal (Applicant)

SOLICITORS:
SE O'Connor (Crown)
Peter Ash & Associates (Applicant)

CATCHWORDS:
CRIMINAL LAW
sexual offences
interlocutory appeal
application for permanent stay
abuse of process
delay.

LEGISLATION CITED:
Criminal Appeal Act 1912, s 5F
Evidence Act 1995, ss 135, 164, 165
Crimes Act 1900, ss 78H, 79, 81A

DECISION:
Time for making application extended, leave to appeal granted, appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60666/01
IPP AJA
DUNFORD J
BERGIN J
Wednesday, 28 AUGUST 2002

R v H

Judgment

Ipp AJA: I agree with Dunford J.
Dunford J: This is an application by H for an extension of time for leave to appeal pursuant to s 5F, Criminal Appeal Act 1912, against the interlocutory order of Morgan DCJ dismissing an application for a permanent stay of proceedings against him on an indictment for buggery contrary to s 79 of the Crimes Act 1900 as it stood in 1970. The Crown has no objection to the application for an extension of time.
In December 2000 the applicant was to stand trial in the District Court at Lismore on three counts, the present count of buggery concerning his son, and two counts (one of indecent assault and one of assault with intent to carnally know) concerning his daughter. He entered a plea of guilty to one count concerning his daughter and was placed on a four-year bond by Judge Ducker.
He sought that the remaining charges be no billed. The remaining charge in respect of the daughter was no billed, but a bill was found for buggery concerning the son. The applicant then applied for a permanent stay which was refused on 6 July 2001, although her Honour did suggest that the matter might be looked at again by the Office of the Director of Public Prosecutions. This prompted a further application to the Director which was also refused, and hence this application for leave to appeal.
The material before her Honour showed that the original indictment against the applicant included all three counts alleged against him, but on the morning of the date set for trial (4 December 2000) the Crown Prosecutor indicated to the applicant’s counsel that the Crown had decided to split the indictment and to proceed firstly with the two counts concerning the daughter, and then separately with the buggery count in respect of the son. Discussions then took place between counsel during which it was indicated that the applicant was prepared to plead guilty to one charge of indecent assault upon his daughter, but that he strenuously denied the other charge in respect of the daughter and the allegations made by his son. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v H

Details

AGLC: R v H [2002] NSWCCA 355
Case: [2002] NSWCCA 355
Decision Date: 28 August 2002

CaseChat Overview and Summary

The matter of R v H was an interlocutory appeal heard by the High Court of Australia. The appellant, H, was charged with multiple counts of sexual offences. The case centred on the trial judge's decision to deny H's application for a permanent stay of proceedings due to alleged abuse of process and significant delays in the judicial process. The trial judge had found that the delay did not constitute an abuse of process warranting a permanent stay. Instead, he ordered a stay until certain matters were resolved, which H considered inadequate. H sought to appeal this decision on the grounds that the trial judge's ruling was erroneous and prejudiced H's right to a fair trial.

The primary legal issues the court needed to address were whether the trial judge's decision to deny a permanent stay constituted an error and whether the delay in the proceedings amounted to an abuse of process. The court examined the principles governing the stay of proceedings, focusing on the balance between the right to a fair trial and the need for the expeditious administration of justice. The court considered the factors pertinent to determining whether a delay had led to an abuse of process, including the length of the delay, the reasons for the delay, and the prejudice caused to the accused.

The High Court found that the trial judge's decision was correct. The court held that the trial judge had appropriately assessed the circumstances and concluded that while there had been a delay, it did not amount to an abuse of process warranting a permanent stay. The court emphasised that the stay of proceedings should only be granted in the most exceptional circumstances where there is a real risk of prejudice to the accused's right to a fair trial. The court concluded that the trial judge's decision was not erroneous and did not constitute an abuse of process. Consequently, the appeal was dismissed, and the trial judge's decision to deny the application for a permanent stay was upheld.

As a result of the court's decision, the appeal was dismissed, and the trial judge's ruling denying the application for a permanent stay was affirmed. The court's reasoning reinforced the principle that stays of proceedings should only be granted in exceptional cases where there is a substantial risk of prejudice to the accused's right to a fair trial. The court's decision underscored the importance of balancing the expeditious administration of justice with the fundamental right to a fair trial.

Orders