R v RL (No 2)

[2016] NSWDC 182

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v RL (No 2) [2016] NSWDC 182
Hearing dates:	19 August 2016
Date of orders:	19 August 2016
Decision date:	19 August 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Stay any further proceedings on the conviction of RL on Count 7
Catchwords:	CRIMINAL LAW – Judgment - late discovery of statutory bar to offence being prosecuted - No power to amend judgment and verdict after delivery
Legislation Cited:	Crimes Act
Category:	Procedural and other rulings
Parties:	The Crown RL
Representation:	Counsel: Mr P Rosser QC - Offender   Solicitors: Director of Public Prosecutions Ms Leanne Mostyn-Turner
File Number(s):	2014/270745
Publication restriction:	There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant

Judgment

1. HIS HONOUR: On 5 August 2016, after a short trial at which I presided alone without a jury, I found the accused guilty on count 7 of an indictment presented against him. I found Mr L not guilty of four other counts. He had pleaded guilty to a further two counts. He thus appears for sentence today on three counts, the count on which I found him guilty and the counts to which he pleaded guilty.

2. The offences were alleged to have occurred many years ago. Count 7 was alleged to have occurred between 30 April 1969 and 31 December 1969. At the time the complainant was 15 years of age. Only last night when Mr Rosser QC was preparing for today’s sentencing proceedings, did a problem with that conviction become apparent. The allegation which formed the basis of count 7 was an allegation that the offender had breached s 76 of the Crimes Act. At the time of the offence, and indeed up until 1992, s 78 provided:

“No prosecution in respect of any offence under s 71, 72 or 76 of this Act shall, if the girl in question was at the time of the alleged offence over the age of 14 years and under the age of 16 years, be commenced after the expiration of 12 months from the time of the alleged offence.”

3. The prosecution was commenced well after the expiry of 12 months from the time of the alleged offence.

4. The result is, as the Crown concedes, that the accused should never have been convicted on count 7 and indeed such a count should never have appeared in the indictment laid against him.

5. Quite what follows is not easy to determine. Clearly I have convicted Mr L of an offence for which he should not have been convicted, but, having delivered my judgment on 5 August 2016, the parties agree that I have no power to, in effect, withdraw that conviction.

6. Mr Rosser speaking from his experience of many years suggests that the appropriate order that I should make now is that I stay proceedings on the conviction and that if the conviction is to be quashed that will have to be done in the Court of Criminal Appeal.

7. I therefore make the order sought by Mr Rosser and consented to by the Crown. I stay any further proceedings on the conviction of Mr L.

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Amendments

26 August 2016 - To comply with the non publication order

24 August 2016 - Correction to catchwords

Decision last updated: 26 August 2016