SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v JACOBI
[2012] SASCFC 115
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Nicholson)
3 October 2012
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - DELAY
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
Appeal against a ruling of a District Court Judge refusing an application for a permanent stay of the proceedings on the ground that their continuation would constitute an abuse of the Court's processes.
Appellant charged with 13 counts of sexual offences against three brothers between 1976 and 1989 - whether a permanent stay of the proceedings ought to be granted by reason of the appellant's ill-health, and the lengthy delay in the allegations proceeding to trial.
Held: Appeal dismissed - a permanent stay will only be granted in the most rare or exceptional circumstances, where it would offend common humanity to require an accused to stand trial - the trial Judge did not err in his assessment of the medical evidence, suitable measures can be taken to ensure the effective participation and comfort of the appellant during the trial - appropriate adjournments and directions are able to sufficiently ameliorate any potential unfairness to the appellant - the proceedings would not involve an unacceptable degree of oppression to the appellant.
Criminal Law Consolidation Act 1935 (SA) s 348, s 352, s 56, s 49; Customs Act 1901 (Cth) s 233B; Evidence Act 1929 (SA) s 34CB, referred to.
Jago v District Court of NSW (1989) 168 CLR 23, applied.
R v Hakim (1989) 41 A Crim R 372, distinguished.
R v P, NJ (No 2) (2007) 99 SASR 1; Williams v Spautz (1992) 174 CLR 509; Walton v Gardiner (1993) 177 CLR 378; R v Austin (1995) 84 A Crim R 374; R v Sexton [2000] SASC 379; Longman v The Queen (1989) 168 CLR 79; R v Cassebohm (2011) 109 SASR 465; Barton v The Queen (1980) 147 CLR 75, considered.
R v JACOBI
[2012] SASCFC 115Court of Criminal Appeal: Gray, Sulan and Nicholson JJ
GRAY AND SULAN JJ: This is an appeal against a ruling of a District Court Judge, made antecedent to trial, refusing an application for a permanent stay of the proceedings, on the ground that their continuation would constitute an abuse of the Court’s processes.
On 24 August 2012 this Court heard the appeal. At that time, the Court ruled that the appeal be dismissed, and ordered that the matter proceed to trial as soon as possible. We now provide reasons for this decision.
The defendant is charged with three counts of indecent assault against a complainant SBM, eight counts of unlawful sexual intercourse against a complainant SJM, and two counts of unlawful sexual intercourse against…
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CaseChat Overview and Summary
This matter concerned an appeal by way of re-hearing against a trial judge's refusal to grant a permanent stay of proceedings. The prosecution alleged that the defendant had sexually abused three brothers over a period spanning from 1976 to 1989. The defendant faced multiple charges of indecent assault and unlawful sexual intercourse. The appeal was brought on the principal grounds that the trial judge had given insufficient weight to the defendant's deteriorating physical health, the detrimental impact of the proceedings on his health and life expectancy, and his ability to concentrate and participate effectively in the trial.
The court was required to determine whether the trial judge erred in refusing to grant a permanent stay of proceedings. This involved considering the discretionary power to order a stay, the onus on the moving party to demonstrate exceptional circumstances justifying such a drastic measure, and the principles governing the exercise of this power, particularly in relation to delay and the defendant's health. The court also had to assess whether the trial judge had adequately considered and weighed the evidence regarding the defendant's health, cognitive state, and the impact of the significant delay between the alleged offending and the trial.
The court reasoned that a permanent stay is an exceptional remedy, only to be granted in rare circumstances where there is a fundamental defect that renders a fair trial impossible. While acknowledging the defendant's health issues and the substantial delay, the court found that the trial judge had fairly considered these factors and had reasonably assessed the evidence. The court noted that arrangements could be put in place to accommodate the defendant's difficulties with concentration and memory. Furthermore, the court held that delay, even extraordinary delay, does not automatically constitute an abuse of process, especially when the delay is not attributable to the prosecuting authorities but rather to the complainants' delayed reporting of the alleged offences. The court also emphasised the significant public interest in the disposition of serious criminal charges, particularly those involving alleged sexual abuse, and the public interest in allowing complainants to have their allegations tested in court.
Ultimately, the court was not persuaded that the trial judge had acted upon a wrong principle, overlooked material considerations, or taken irrelevant factors into account. The decision to refuse the stay was deemed not to be so unreasonable or plainly unjust as to indicate error. Consequently, the appeal was dismissed.
The court was required to determine whether the trial judge erred in refusing to grant a permanent stay of proceedings. This involved considering the discretionary power to order a stay, the onus on the moving party to demonstrate exceptional circumstances justifying such a drastic measure, and the principles governing the exercise of this power, particularly in relation to delay and the defendant's health. The court also had to assess whether the trial judge had adequately considered and weighed the evidence regarding the defendant's health, cognitive state, and the impact of the significant delay between the alleged offending and the trial.
The court reasoned that a permanent stay is an exceptional remedy, only to be granted in rare circumstances where there is a fundamental defect that renders a fair trial impossible. While acknowledging the defendant's health issues and the substantial delay, the court found that the trial judge had fairly considered these factors and had reasonably assessed the evidence. The court noted that arrangements could be put in place to accommodate the defendant's difficulties with concentration and memory. Furthermore, the court held that delay, even extraordinary delay, does not automatically constitute an abuse of process, especially when the delay is not attributable to the prosecuting authorities but rather to the complainants' delayed reporting of the alleged offences. The court also emphasised the significant public interest in the disposition of serious criminal charges, particularly those involving alleged sexual abuse, and the public interest in allowing complainants to have their allegations tested in court.
Ultimately, the court was not persuaded that the trial judge had acted upon a wrong principle, overlooked material considerations, or taken irrelevant factors into account. The decision to refuse the stay was deemed not to be so unreasonable or plainly unjust as to indicate error. Consequently, the appeal was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
The trial Judge granted the defendant permission to appeal his ruling as a matter antecedent to trial. The appeal is an appeal by way of re-hearing.[2] [2] R v P, NJ (No 2) (2007) 99 SASR 1. Background to alleged offending: The prosecution alleges that the defendant continually sexually abused three brothers between 1976 and 1989. The complainant SBM was allegedly abused from 1976 to 1979, when he was aged between 11 and 14 years. The defendant is charged with three counts of indecent assault in respect of this alleged offending.[3] [3] Criminal Law Consolidation Act 1935 (SA), section 56. The complainant SJM was allegedly abused between 1980 to 1987, when he was aged between 6 and 13 years. The defendant is charged with eight counts of unlawful sexual intercourse in respect of this alleged offending.[4] [4] Criminal Law Consolidation Act 1935 (SA), section 49(1). The complainant VM was allegedly abused from about 1986 to 1989 when he was aged between 10 and 13 years. The defendant is charged with two counts of unlawful sexual intercourse.[5] [5] Criminal Law Consolidation Act 1935 (SA), section 49(1). The appeal The principle ground relied upon by the defendant in seeking a permanent stay is the state of the defendant’s health. It is submitted by his counsel that the trial Judge gave insufficient weight to the defendant’s deteriorating physical health and the deleterious impact of the court proceedings on his health and life expectancy. Second, it is submitted that the trial Judge gave insufficient weight to the defendant’s ability to concentrate and participate effectively in the trial. The power to order a stay is a discretionary power. The onus is on the moving party to demonstrate the existence of facts which have the capacity to enliven the discretion to order a stay, and that in all of the circumstances, a stay is the only remedy available to prevent abuse. A permanent stay will only be granted in the most rare or exceptional circumstances.[6] In Jago, Mason CJ observed:[7]Ultimately, it does not matter whether the problem is resolved in this way, by invoking a wide interpretation of the concept of abuse of process, or by saying that courts possess an inherent power to prevent their processes being used in a manner which gives rise to injustice. In either event the power is discretionary, to be exercised in a principled way, and the same considerations will govern its exercise. And in each case the power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed. … I would prefer to regard the power as an incident of the general power of a court of justice to ensure fairness. …To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the criminal trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”. [6] Williams v Spautz (1992) 174 CLR 509, 529, Jago v District Court of NSW (1989) 168 CLR 23. [7] Jago v District Court of NSW (1989) 168 CLR 23, 31, 34.
Evidence
Evidence Before The Court
This issue of the appellant’s capacity to concentrate and to remember, provided suitable trial conditions were in place, was dealt with by the Judge in his reasons.[78] His Honour fairly and reasonably described the problem and the types of arrangements to be put in place in order to accommodate the problem. It is accepted that the trial process is likely to cause significant difficulties for the appellant in the respects complained of. However, like the Judge, I am satisfied that such arrangements can be put in place that will sufficiently ameliorate these problems. In any event, whilst other Judges might have taken a different view about the strength of this factor, particularly given the significant disruption to the normal trial process and inconvenience to all that inevitably will result, I am not persuaded that the Judge in this case failed to consider and reasonably assess the relevant evidence or that he placed insufficient weight on the appellant’s cognitive state, as disclosed in the evidence, when reaching his ultimate decision.Was insufficient weight given to delay and the consequential loss of documentary and oral evidence potentially relevant to the defence case?[78] [2012] SADC 92 at [29], [39]-[40], [42]-[43], [94] and [99]. In my consideration of this ground relied upon by the appellant I also deal with the matter raised in (vi) above. The chronology of this matter demonstrates that there will be a substantial delay (from 25 to 36 years) between the events alleged and any trial. However, the authorities consistently reiterate the proposition that delay, even extraordinary delay, does not of itself amount to an abuse of process and that there must be other factors which would render the continuation of the proceedings unfair or oppressive. In this context Mason CJ in Jago v District Court of New South Wales[79] is often cited.Where delay is the sole ground of complaint, an accused seeking a permanent stay must be “able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute”. (Citation omitted.)Deane J said this.The stage can, however, be reached where delay in the institution or prosecution of criminal proceedings is so prolonged that it becomes unreasonable. If and when that stage is reached will depend upon the particular circumstances, such as when the relevant authorities first become aware of the alleged criminal conduct and of the material said to prove the accused’s guilt and whether the charge is a complex or a simple one. When that stage is reached, an accused can, if he does not share responsibility for the delay, justifiably claim that the burden of pending criminal proceedings has passed beyond what can be justified in the due administration of justice.[79] (1989) 168 CLR 23 at 34. In this case it cannot be said that the prosecuting authorities are at fault or caused the delay. At least, no submission to that effect has been put. The allegations were only reported by the complainants to the police in 2010. Had they been reported earlier, charges with respect to counts one to five could have been laid as from 17 June 2003 and with respect to counts six to 13, as and from when the alleged conduct occurred after 1 December 1983.[80] The fact that this extensive delay has arisen from the delay in making the complaints to the police, rather than dilatory conduct by the prosecuting authorities should carry little weight in this case.[81] The appellant has not submitted otherwise. [80] Section 76A of the Criminal Law Consolidation Act 1935 (since repealed) provided, in effect, that no information could be laid in respect of various sexual offences more than three years after the commission of the offence in question. Section 76A was repealed by Act number 98 of 1985 which took effect on 1 December 1985. The repeal was retrospective in its effect other than where the limitation period of three years had already expired as at 1 December 1985, R v Pinder (1989) 155 LSJS 565. As far as the present case is concerned the only allegations caught by this time limitation regime were those underlying counts one to five. Counts six to 13 could have been proceeded with as and when they arose. However, s72A of the Criminal Law Consolidation Act was enacted by Act number 14 of 2003, operational on 17 June 2003. The effect of s72A is to abolish any time limitation for the prosecution of sex offences. It provides:Any immunity from prosecution arising because of the time limit imposed by the former s76A is abolished.It follows that, as from 17 June 2003, the prosecution would have been free to lay the charges in counts one to five as well.[81] R v Lane (unreported FCA, Wilcox, Ryan and Higgins JJ, 19 June 1995) cited in R v Davis (1995) 81 A Crim R 156 at 158-159; R v Polyukhovich S3782 (unreported SASC, Cox J, 22 December 1992).
Decision
Reasons for decision
The public interest in the disposition of charges of serious criminal offences involving alleged sexual abuse is manifest. There also is a public interest in complainants, concerning such matters, having the opportunity to present their allegations in court so as to seek public vindication. As a matter of justice, it is important that accusers have the right to have their allegations presented, tested and ultimately, where appropriate, accepted in an open court. In addition, although I have no evidence and I am in no position to make any findings in this next respect, where crimes of sexual abuse are concerned there may well be a significant therapeutic benefit and a sense of closure for the complainants concerned which, of itself, can be in the public interest. The fact that these complainants have not yet had their day in court before a judge and jury or a judge sitting alone is a relevant consideration when determining whether or not to grant a stay.Conclusion In R v Polyukhovich[91] Cox J observed that “a fair trial is not the same as a perfect trial”. The fact that unfairness, even irreparable unfairness, and whether or not it derives from delay, necessarily will attend the trial of an accused will not of itself lead to a stay. In order to grant a stay, the court must be satisfied that there is an unacceptable risk to a fair trial. The question of whether the risk that an accused will not enjoy a fair trial is unacceptable is to be determined within the context of an assessment of the strength or importance of the public interest considerations relevant to the particular proceedings in question. In conducting the balancing exercise, the weight to be accorded to the public interest, in the disposition of charges of serious offences, in the conviction of those guilty of crime and in the need to maintain public confidence in the administration of justice[92] will not be constant across all criminal proceedings.[91] S3782, unreported SASC, Cox J 22 December 1992.[92] Walton v Gardiner at 395-396. The matters relied on by the appellant as indicative of unfairness and oppression have, to some degree, been dealt with in these reasons separately and in a fragmented manner. However, ultimately it is their effect in combination that must be assessed in the context of the necessary balancing exercise. The Judge below approached the matter in this way.[93] His Honour recognised that the appellant will be labouring under a number of difficulties and disadvantages at the trial and that these were the product of his poor health, his advanced years and, ultimately, the extensive delay in bringing the matters to trial. His Honour considered the various steps available by which the extent of this prejudice could be ameliorated. His Honour had regard to the public interest and exercised the balancing process called for by the authorities. [93] See generally [2012] SADC 92 at [84]-[100]. After reviewing the Judge’s approach and the evidence upon which it was based, I am not persuaded that his Honour acted upon a wrong principle, overlooked or placed insufficient weight on any material consideration or took into account any irrelevant considerations. The decision reached was not so unreasonable or plainly unjust as to indicate error. It was for these reasons that I joined in the dismissal of the appeal.
Ratio Decidendi
Legal Principle Established
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