R v RTW (No 2) No. Sccrm-00-128

[2000] SASC 252

R v RTW (NO 2)
[2000] SASC 252

Court of Criminal Appeal:  Doyle CJ, Prior and Martin JJ

1................ DOYLE CJ........ These are the Court’s reasons for the decision by the Court to dismiss an application made to it. The application was for an order pursuant to s 350(2)(a) of the Criminal Law Consolidation Act 1935 (SA) requiring a Judge of the District Court to reserve for consideration and determination by the Full Court three questions specified in the application.

1. The applicant has been charged on a number of counts alleging indecent assault, unlawful sexual intercourse and rape of several different boys whose ages at the time of the alleged offences varied between about six years of age and 17 years of age.  The applicant is charged on two Informations. The first Information contains 25 counts.  The second Information contains 10 counts.  Nine of those counts are also on the first Information.

2. The second Information was set down for trial before the District Court Judge in July this year.  In March of this year the applicant made application to the Judge for an order staying further proceedings on the counts in the second Information on the grounds that the maintenance of those proceedings would be an abuse of process.

3. The applicant also sought a stay of proceedings on the counts on the first Information on which the Director of Public Prosecutions had indicated that he intended to proceed.  The first Information was not before the Judge in the sense that it was not listed to be tried before the Judge.

4. The application for a stay of proceedings was made on grounds that are substantially the same in relation to each count. The grounds for the stay are the delay by the alleged victims in reporting the allegations and the fact that in most cases a complaint was made only when the alleged victim was approached by the police; the period of time that has elapsed since the date of the alleged offences; a lack of particularity in the particulars given and in respect of the evidence foreshadowed; what is said to be weakness of the Crown case with respect to a number of counts; a submission that each allegation is uncorroborated; the fact that the Crown will seek to lead evidence of uncharged acts, which evidence is subject to the same criticisms, and the fact that a number of the complainants were aware of other allegations made against the applicant when they were approached by the police. As to certain counts, the applicant also submits that the alleged conduct had occurred more than three years prior to the repeal of s 76A of the Criminal Law Consolidation Act on 1 December 1985.  That section fixed a three year time limit for the prosecution of certain offences, including the offences with which the applicant is charged.

5. The District Court Judge heard submissions, and declined to stay the counts on the second Information.  He gave detailed written reasons for so concluding.  He dealt with the facts and with the submissions made to him.  The Judge declined to make a decision on the application in relation to the counts on the first Information.  He so declined on the basis that he was not the Judge who was to try that Information.  But he heard the submissions in support of the application for a stay.

6. This Court has previously said that it is generally undesirable for criminal trials to be delayed or interrupted by appeals or applications to the Full Court affecting the conduct of the trial, or relating to applications and decisions made before the trial begins:  see, for example, R v Gee (1999) 72 SASR 593 at 594, Application for Reservation of Questions of Law (No 2 of 1999) (1999) 106 A Crim R 423 at [32], 430. We adhere to the view expressed in those passages.

7. The purpose of having the Judge reserve questions for consideration by the Full Court is to challenge the correctness of his refusal to stay the proceedings on the counts before him, and to challenge his refusal to decide the application made with respect to the first Information.

8. The issues raised in relation to the second Information are not issues of general importance.  Although the period between the alleged offences and now is lengthy, and the case has some unusual features, the application to the District Court Judge involved the application of well settled principles.  The facts, or allegations, are facts or allegations of a kind that are encountered in cases of alleged sexual abuse of young people by persons in authority.  The case cannot be regarded as exceptional.

9. It is true that if the application to the District Court Judge were successful, the prosecution would proceed no further.  But it is also the case that if the Judge’s decision is wrong, and if the applicant is convicted, the decision by the trial Judge can be the subject of an appeal against conviction.  Some of the matters raised are matters that are better considered, in our opinion, in the light of sworn evidence, rather than on the basis of statements provided by the prosecution.

10. The submissions directed to the repealed s 76A appear to have little prospect of success, in light of the manner in which the various counts are pleaded: cf R v Pinder (1989) 155 LSJS 65. Those submissions can be renewed at the close of the prosecution case, should the evidence make that course appropriate.

11. Whether the Judge was empowered by s 285A of the Criminal Law Consolidation Act to make a decision on the application relating to the first Information does raise an issue of principle.  Remarks made by King CJ in Attorney-General’s Reference No 1 of 1988 (1988) 49 SASR 1 at 5 - 6 suggest that the Judge was correct in thinking that he was not empowered to rule on the application relating to the first Information. But in any event the reasons that he gave for refusing to stay the counts on the second Information indicate that he would have refused to stay the counts on the first Information. Bearing that in mind, it is undesirable to interrupt the trial to determine the point of principle that does arise.

12. For those reasons, in the exercise of its discretion, the Court declined to require the Judge to reserve questions for its consideration, and dismissed the application made to it.