R v RB (No 6)

[2020] NSWDC 600

District Court

New South Wales

Medium Neutral Citation:

R v RB (No 6) [2020] NSWDC 600

Hearing dates:

07 October 2020

Date of orders:

07 October 2020

Decision date:

07 October 2020

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

The application for a permanent stay is refused.

Catchwords:

CRIMINAL PROCEDURE – sexual offence proceedings – permanent stay application – exceptional remedy – need to identify fundamental defect and unfair consequences or proceedings amount to abuse of process – no evidence of actual unfairness caused - ex tempore judgment 

Legislation Cited:

Evidence Act 1995

Criminal Procedure Act 1986

Cases Cited:

R v Moore (2015) 91NSWLR 276

Jackmain (a pseudonym) [2020] NSWCCA 150

R v RD [2016] NSWCCA 84

Category:

Procedural and other rulings

Parties:

Regina (Crown)
RB (Accused)

Representation:

Counsel:
Mr Kerr (Crown)
Ms Graham (Offender)

Solicitors:
Ms Brown (Crown)
Ms Gidlow (ALS)

File Number(s):

2017/0056625

Publication restriction:

Non publication order in relation to the names of the complainant and the accused.

EX TEMPORE Judgment

1. The accused applies for a permanent stay of the trial. The power to stay proceedings permanently will only be granted in extreme or exceptional cases. It is an exceptional remedy. A permanent stay is tantamount to a continuing immunity from prosecution.

2. There is a public interest in serious allegations being disposed of on the merits: R v Moore (2015) 91NSWLR 276 at [24].

3. In evaluating an application for a permanent stay there is a:

“weighing process involving the subjective of balancing of a variety of factors and considerations including the requirement of fairness to the accused, the legitimate public interest in the disposition of charges for serious offences and the need to maintain public confidence in the administration of justice.”:R v RD [2016] NSWCCA84 at [56]:

“The yard stick is not simply fairness to the particular accused. Rather, it is whether the continuation of the prosecution is consistent with the recognised purpose of criminal justice and so constitutes an abuse of the process of the court…to justify a permanent stay of criminal proceedings there must be a fundamental defect which goes to the root of the trial of such a nature that there is nothing the Court can do to relieve against it’s unfair consequences.” : R v RD at [53].

4. Ms Graham, who appears on behalf of the accused submits that a stay should be granted for the following reasons;

s 293 of The Criminal Procedure Act and it’s operation has prevented the accused painting a picture before the jury that JQ has a tendency to fabricate allegations of sexual impropriety.

5. There is evidence that has been rejected that as a high school student she has told many people that she had been sexually assaulted by various boys and men. Leeming JA was not satisfied that the exclusion of that evidence would come close to establishing the sort of fundamental defect to a criminal trial that would warrant a permanent stay: Jackmain (a pseudonym) [2020] NSWCCA 150 at [217].

6. The complainant wrote a long…