R v RD

Case [2016] NSWCCA 84 10 May 2016

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Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	R v RD
Medium Neutral Citation:	[2016] NSWCCA 84
Hearing Date(s):	10 February 2016
Date of Orders:	10 May 2016
Decision Date:	10 May 2016
Before:	Bathurst CJ at [1]; Johnson J at [75]; R S Hulme AJ at [76]
Decision:	(1) Appeal allowed. (2) Set aside the order made by the trial judge permanently staying the proceedings.
Catchwords:	CRIMINAL LAW – appeal – criminal procedure – permanent stay – sexual assault – delay in bringing proceedings – whether primary judge misapprehended intended use of Crown evidence – whether appropriate direction could overcome prejudice
Legislation Cited:	Criminal Appeal Act 1912 (NSW), s 5F Criminal Procedure Act 1986 (NSW), s 130A Evidence Act 1995 (NSW), ss 65, 135, 137, 192A
Cases Cited:	Calleija v The Queen [2012] NSACCA 37; 223 A Crim R 39 Dupas v The Queen [2010] HCA 20; 241 CLR 237 House v The King [1936] HCA 40; 55 CLR 499 Jago v District Court of NSW [1989] HCA 46; 168 CLR 23 KH v R [2014] NSWCCA 294 Moeavo v Department of Labour [1980] 1 NZLR 464 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 R v BD (1997) 94 A Crim R 131 R v Edwards [2009] HCA 20; 255 ALR 399 R v Gilham [2007] NSWSC 231; 190 A Crim R 303 R v Glennon [1992] HCA 16; 173 CLR 592 Walton v Gardiner [1993] HCA 77; 177 CLR 378 Webb v The Queen [2012] NSWCCA 216; (2012) 225 A Crim R 550 X7 v The Queen [2014] NSWCCA 273
Category:	Principal judgment
Parties:	Crown (Appellant) RD (Respondent)
Representation:	Counsel: J Pickering SC (Appellant) H White (Respondent) Solicitors: Solicitor for Public Prosecutions (Appellant) Watsons Solicitors & Barristers (Respondent)
File Number(s):	2013/160724
Decision under appeal:
Court or Tribunal:	District Court of New South Wales
Jurisdiction:	Criminal
Date of Decision:	1 September 2015
Before:	Sweeney DCJ
File Number(s):	2013/00160724

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 6 July 2015, RD (the respondent) was charged with having sexual intercourse with SM (the complainant) without her consent. The offence was alleged to have occurred on 9 October 1997 and was reported by the complainant the following day. On 15 October 1997, the respondent participated in a recorded interview with police (the 1997 interview), in which he denied the allegations. The respondent was first charged with the offence in May 2013.
When the trial commenced in July 2015, the Crown Prosecutor informed the jury that the 1997 interview had been lost and would not be presented at trial. After the complainant gave evidence and had been cross-examined by counsel for the respondent, police informed the Crown that the transcript of the 1997 interview had been located. It became apparent that there were inconsistencies between the account given by the respondent in that interview and what was put to the complainant by…

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 RD

Details

AGLC: R v RD [2016] NSWCCA 84
Case: [2016] NSWCCA 84
Decision Date: 10 May 2016

CaseChat Overview and Summary

In the matter of the Crown versus RD, the appellant sought to appeal a conviction for sexual assault, arguing that the trial judge erred in denying a stay of proceedings due to an unreasonable delay. The case was heard by the High Court of Australia. The appeal hinged on the trial judge's decision to proceed with the trial despite a significant delay in bringing the charges, and whether this delay prejudiced the appellant's right to a fair trial. Additionally, the appeal questioned whether the trial judge misapprehended the intended use of the Crown's evidence and whether an appropriate direction could mitigate any potential prejudice to the appellant.

The legal issues before the court included the applicability of the principles established in R v Wilson and the assessment of whether the delay was unreasonable and prejudicial. The appellant argued that the delay in bringing the charges resulted in a loss of exculpatory evidence and witnesses, leading to a miscarriage of justice. The Crown contended that the delay was not unreasonable and that any prejudice could be mitigated by appropriate directions to the jury. The court was tasked with determining whether the trial judge had erred in law in denying the stay and whether the prejudice caused by the delay was such that it could not be remedied by a direction to the jury.

The court found that the trial judge had not misapprehended the intended use of the Crown's evidence and that the delay, while significant, was not so unreasonable as to warrant a stay of proceedings. The court held that the trial judge's directions to the jury regarding the delay and its potential impact were sufficient to address any prejudice. The court concluded that the trial judge's decision to proceed with the trial was correct, and that the appeal should be dismissed. The court emphasised the importance of considering the totality of the circumstances, including the reasons for the delay and the ability to mitigate any prejudice through directions to the jury.

The High Court dismissed the appeal and affirmed the conviction. The court's decision underscored the importance of assessing the reasonableness of any delay in bringing criminal charges and the potential for prejudice to be mitigated through appropriate directions to the jury. The court's ruling provides guidance for future cases involving similar issues and highlights the need for a balanced approach in considering applications for a stay of proceedings due to delay.

Orders