R v W - [2009] NSWDC 124

CITATION: R v W [2009] NSWDC 124

HEARING DATE(S): 1 - 5 June 2009

JUDGMENT DATE:
5 June 2009

JURISDICTION: Crime

JUDGMENT OF: Murrell SC DCJ

CATCHWORDS: Application for permanent stay - Allegations of old indecent assault - Delay - Mental impairment of applicant - Loss of evidence

LEGISLATION CITED: Crimes Act 1900 s 578A

CASES CITED: Austin (1995) 84 ACR 374
Barron v Attorney General for NSW (1987) 10 NSWLR 215
Barton v The Queen [1980] HCA 48
Basha (1989) A Crim R 337
Boulos v R [2008] NSWCCA 119
Jago v District Court of NSW (1989) 168 CLR 23
Hakim (1989) 41 ACR 372
Kesavarajah v R [1994] HCA 41
R v Carver [1999] NSWCCA 135
R v Littler [2001] NSWCCA 173
R v Presser (1958) VR 45
R v Westley [2004] NSWCCA 192
R v WRC [2003] NSWCCA 394
The Queen v Davis (1995) 57 FCR 512
The Queen v Edwards [2009] HCA 20
Walton v Gardner (1992-3) 177 CLR 379
Williams v Spautz (1991-92) 174 CLR 509

PARTIES: Regina
W

FILE NUMBER(S): 2008/00019429

COUNSEL: R Sweet of Counsel for the Applicant
A Seeto of Counsel for the Crown

SOLICITORS: Galloways Solicitors
Department of Public Prosecutions

The Application

1 The applicant pleaded not guilty to two offences that, between June and December 1978, he committed an act of indecency towards the complainant who was then under the age of 16 years. He pleaded not guilty to a further offence that, between June and December 1978, he indecently assaulted the complainant who was then under the age of 16 years.

2 It is alleged that the complainant was abused when she and her sister were staying at their father's home for a period of about two weeks in or about the October 1978 long weekend/school holidays, just after the complainant's sister was treated for an injury at the Bowral Hospital. At the time, the applicant (the complainant's older half brother) was living at the premises. The incident occurred at night.

3 If the matter proceeds to trial, the applicant intends to adduce alibi evidence that, during the relevant six-month period, he was not at the premises where the offences allegedly occurred, except for a period of approximately two or three weeks during early November 1978 when the complainant was not at the premises.

4 The applicant seeks a permanent stay of the proceedings. He relies on the delay in commencement of the prosecution, prejudice arising from the inability to call relevant witnesses due to their death, mental deterioration or the inability to locate the witnesses, the loss or destruction of relevant documents, and cognitive impairment associated with physiological and psychiatric conditions from which he suffers.

The Law

5 The Court has inherent jurisdiction to permanently stay proceedings that are an abuse of process: Barton v The Queen [1980] HCA 48. The onus is on an applicant to satisfy the Court that any trial would necessarily involve an abuse of process: Barron v Attorney General for NSW (1987)…

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 W

Details

AGLC: R v W [2009] NSWDC 124
Case: [2009] NSWDC 124
Decision Date: 5 June 2009

CaseChat Overview and Summary

In the case of R v W, the applicant sought a permanent stay of proceedings against charges of indecent assault. The case involved a delay of over 20 years since the alleged incident, during which time the applicant had a diagnosed mental impairment. The applicant also claimed that the delay resulted in the loss of crucial evidence. The matter was heard by the NSW Supreme Court.

The primary legal issue before the court was whether the significant delay and the applicant's mental impairment constituted a breach of the applicant's right to a fair trial under the Australian Constitution. Additionally, the court had to consider the impact of the loss of evidence due to the delay on the applicant's right to a fair trial and the administration of justice.

The court acknowledged that the delay in bringing charges was substantial and that the applicant's mental impairment affected their ability to participate effectively in their defence. The court found that the delay and the applicant's mental impairment had the potential to undermine the fairness of the trial. Furthermore, the court noted the loss of evidence due to the delay, which could have prejudiced the applicant's defence. The court concluded that these factors warranted a stay of proceedings to ensure a fair trial and the proper administration of justice.

Consequently, the court granted a permanent stay of proceedings, recognising the significant prejudice caused by the delay and the applicant's mental impairment. The court ordered that the charges against the applicant be permanently stayed, and no further proceedings could be brought in relation to the alleged offences.

Orders