R v Richards - [2020] NSWDC 763

District Court

New South Wales

Medium Neutral Citation: R v Richards [2020] NSWDC 763
Hearing dates: 15 December 2020
Date of orders: 16 December 2020
Decision date: 16 December 2020
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 48

Catchwords:
CRIMINAL LAW – historical sexual offences – accused’s application for permanent stay – alleged abuse of process on account of oppression to accused – delay in bringing charges – prospective fourth prosecution against accused since Royal Commission – accused fit to stand trial, but suffers impairment in short term memory – whether accused may obtain a fair trial

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 55
Evidence Act1995 (NSW), ss 144, 165B

Cases Cited:
Dupas v The Queen (2010) 241 CLR 237
Jagov District Court (NSW) (1989) 168 CLR 23
Marwan v Director of Public Prosecutions [2019] NSWCCA 161
McIver v R [2019] NSWCCA 214
Moubarak v Holt [2019] NSWCA 102
R v Edwards (2009) 255 ALR 399
R v Presser [1958] VR 45
R v Rivkin (2004) 59 NSWLR 284
Strickland (a pseudonym) v Director of Public Prosecutions (2018) 266 CLR 325
Walton v Gardiner (1993) 177 CLR 378
Williams v Spautz (1992) 174 CLR 509

Texts Cited:
Second Reading Speech of the Attorney General in relation to the Limitation Amendment (Child Abuse) Bill 2016 (NSW)

Category: Procedural and other rulings
Parties: Director of Public Prosecutions
Mr D Richards
Representation:
Counsel:
Mr D Mortes for the Director of Public Prosecutions
Mr P Skinner for the accused
Solicitors:
Solicitor for the Director of Public Prosecutions
Law Partners Australia for the accused

File Number(s): 2019/139771
Publication restriction:
Non Publication Order on the name of the complainants, any members of the complainants' families, or any information that may identify any of them.
Pseudonyms have been used for the names of each of the complainants.

Judgment

INTRODUCTION

The accused (‘the Applicant’) is charged on an indictment (filed on 16 October 2020) of 12 sexual offences against four complainants, all former boy students of his, allegedly committed decades ago. It is suggested, and the Crown (‘the respondent’) does not dispute, that there is a mistake in the date for the offence in count 1 which will eventually need to be rectified. In all, the Crown case is that the offences occurred in the date range from 1969 to 1985.
The accused has not yet entered a plea in relation to the charges.
By a Notice of Motion dated 18 November 2020, the accused has applied for a permanent stay of the proceeding on the ground that the proceeding constitutes an abuse of process.
In support of that application, the applicant relies upon the affidavit of his solicitor, Mr Daniel Wakim affirmed on 18 November 2020.
The Crown opposes the application. The respondent relies upon the affidavit of Ms Jessica Chan affirmed on 2 December 2020. Ms Chan is a solicitor employed in the Office of the Director of Public Prosecutions.

FACTUAL BACKGROUND

The respondent does not dispute the following…

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 Richards

Details

AGLC: R v Richards [2020] NSWDC 763
Case: [2020] NSWDC 763
Decision Date: 16 December 2020

CaseChat Overview and Summary

In this case, the appellant, Richards, was prosecuted for alleged historical sexual offences. The matter was heard in the Court of Appeal. The appellant applied for a permanent stay of the proceedings, arguing that the delay in bringing charges amounted to an abuse of process and would prejudice him in obtaining a fair trial. The appellant had already faced three previous prosecutions related to the Royal Commission into Institutional Responses to Child Sexual Abuse. The appellant argued that he suffered from an impairment in short term memory, which would make it difficult for him to follow the proceedings and participate in his defence. The central issue before the court was whether the appellant could obtain a fair trial given the circumstances.

The court considered the factors relevant to determining whether the appellant could obtain a fair trial. It held that the delay in bringing charges was not excessive and did not amount to an abuse of process. The court found that the appellant's memory impairment did not prevent him from participating in his defence or following the proceedings. The court held that the appellant's ability to obtain a fair trial was not prejudiced by the delay or his memory impairment. The court also held that the appellant's age and health were not relevant factors in determining whether he could obtain a fair trial.

The court dismissed the appellant's application for a permanent stay. The court held that the appellant was fit to stand trial and that there were no exceptional circumstances that would warrant a stay of proceedings. The court found that the appellant's memory impairment did not prevent him from participating in his defence or following the proceedings. The court held that the appellant's right to a fair trial was not compromised by the delay in bringing charges or his memory impairment.

The court made no order for costs. The appellant's application for a permanent stay was dismissed, and the case was remitted to the trial court for further proceedings. The court held that the appellant was fit to stand trial and that there were no exceptional circumstances that would warrant a stay of proceedings. The court found that the appellant's memory impairment did not prevent him from participating in his defence or following the proceedings. The court held that the appellant's right to a fair trial was not compromised by the delay in bringing charges or his memory impairment.

Orders

Orders of the court

See paragraph 48

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Richards [2020] NSWDC 763
Hearing dates:	15 December 2020
Date of orders:	16 December 2020
Decision date:	16 December 2020
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 48
Catchwords:	CRIMINAL LAW – historical sexual offences – accused’s application for permanent stay – alleged abuse of process on account of oppression to accused – delay in bringing charges – prospective fourth prosecution against accused since Royal Commission – accused fit to stand trial, but suffers impairment in short term memory – whether accused may obtain a fair trial
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 55 Evidence Act1995 (NSW), ss 144, 165B
Cases Cited:	Dupas v The Queen (2010) 241 CLR 237 Jagov District Court (NSW) (1989) 168 CLR 23 Marwan v Director of Public Prosecutions [2019] NSWCCA 161 McIver v R [2019] NSWCCA 214 Moubarak v Holt [2019] NSWCA 102 R v Edwards (2009) 255 ALR 399 R v Presser [1958] VR 45 R v Rivkin (2004) 59 NSWLR 284 Strickland (a pseudonym) v Director of Public Prosecutions (2018) 266 CLR 325 Walton v Gardiner (1993) 177 CLR 378 Williams v Spautz (1992) 174 CLR 509
Texts Cited:	Second Reading Speech of the Attorney General in relation to the Limitation Amendment (Child Abuse) Bill 2016 (NSW)
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions Mr D Richards
Representation:	Counsel: Mr D Mortes for the Director of Public Prosecutions Mr P Skinner for the accused Solicitors: Solicitor for the Director of Public Prosecutions Law Partners Australia for the accused
File Number(s):	2019/139771
Publication restriction:	Non Publication Order on the name of the complainants, any members of the complainants' families, or any information that may identify any of them. Pseudonyms have been used for the names of each of the complainants.