R v Pike - [2000] NSWCCA 347

CITATION: R v Pike [2000] NSWCCA 347

FILE NUMBER(S): CCA 60150/00

HEARING DATE(S): 30 August 2000

JUDGMENT DATE:
5 September 2000

PARTIES :

Regina v Reginald John Pike

JUDGMENT OF: Studdert J at 1; Dowd J at 31; Bell J at 32

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/71/0009

LOWER COURT JUDICIAL
OFFICER : Freeman DCJ

COUNSEL : R.A. Hulme (Crown)
M. Ierace SC (Applicant)

SOLICITORS: S.E. O'Connor (Crown)
Cater & Blumer (Applicant)

LEGISLATION CITED: Criminal Appeal Act

CASES CITED:
Jago v The District Court (1989) 168 CLR 23
The Queen v Glennon (1992) 173 CLR 593
Walton v Gardiner 177 CLR 378
R v Peters (1995) 83 A Crim R 142
R v VPH (unreported, NSWCCA, 4 March 1994)
R v McCarthy, McDonald & Isaksen (unreported, NSWCCA, 12 August 1994)

DECISION: See para 30

IN THE COURT OF
CRIMINAL APPEAL
60150/00

STUDDERT J
DOWD J
BELL J
Tuesday 5 September 2000

REGINA v Reginald John PIKE
JUDGMENT
1 STUDDERT J: This is an application for leave to appeal pursuant to s 5F of the Criminal Appeal Act. The application follows the refusal by his Honour Judge Freeman to order the permanent stay of proceedings on indictment in the District Court.
2   The applicant faces the prospect of indictment on three counts:

(a) the first and the second counts of the proposed indictment charging him with attempt to unlawfully and carnally know his daughter between 6 April 1978 and 17 October 1979 when the complainant was above the age of ten and under the age of seventeen years;
(b) the third count charging him with assault with intent to carnally know his daughter on or about 18 October 1979 at the age of twelve years.

3   The applicant and his wife married in 1965 and separated in November 1979. They had three children, of whom the complainant was the eldest. The complainant was born on 6 April 1967.
4   The complainant’s account of what is claimed to have occurred is contained in her statement to police dated 5 September 1997. According to the complainant, the applicant kissed her inappropriately on two occasions and there were other numerous occasions when he touched her on the vagina and required her to touch him on the penis. There were other alleged episodes of sexual impropriety. However the indictment refers to three offences described by the complainant and which can be shortly summarised.
5   The first and second counts relate to an allegation that the applicant tried to have sexual intercourse with his daughter when he was driving her home from band practice. According to the complainant, the applicant drove into a country lane, told his daughter to lie on the seat in the vehicle and then he attempted to penetrate her vagina with his penis. When this proved unsuccessful, the applicant employed the aid of vaseline before making a second attempt, which was equally unsuccessful.
6   So far as the third of the alleged offences is concerned, 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 Pike

Details

AGLC: R v Pike [2000] NSWCCA 347
Case: [2000] NSWCCA 347
Decision Date: 5 September 2000

CaseChat Overview and Summary

The case of Regina v Reginald John Pike, heard by the NSW Court of Criminal Appeal, revolves around an application for leave to appeal against the refusal of a permanent stay of proceedings by the District Court. The applicant, Reginald John Pike, faces three counts of sexual offences against his daughter, with the alleged incidents occurring between 1978 and 1979. The application was made pursuant to section 5F of the Criminal Appeal Act, following the District Court's decision to deny the stay. The legal issues before the Court centered on whether the trial judge's discretion miscarried in denying the stay, whether the delay in charging constituted an abuse of process, and the extent of prejudice to the applicant due to the passage of time and loss of records.

The Court of Criminal Appeal reviewed the principles governing applications for a permanent stay, emphasizing the need for such a remedy to be employed only in extreme cases where a fair trial is not possible. The Court found that the District Court judge did not miscarry his discretion, as the reasons provided for the denial of the stay were well-founded. The Court also noted that the police were not obligated to charge the applicant in 1979 based on the available evidence, and that the delay alone did not establish an abuse of process. Furthermore, the Court held that the applicant had not demonstrated that the passage of time and loss of records necessarily precluded a fair trial. The judges concluded that the case did not fall into the exceptional category warranting a permanent stay and proposed granting leave to appeal but dismissing the appeal.

Orders