R v Westley

[2004] NSWCCA 192

CITATION:	Regina v Frederick Westley [2004] NSWCCA 192
HEARING DATE(S):	13 May 2004
JUDGMENT DATE:	6 August 2004
JUDGMENT OF:	Dunford J at 1; Hidden J at 52; Adams J at 53
DECISION:	Leave to appeal granted - appeal allowed - order of the District Court set aside and in lieu thereof prosecution permanently stayed
CATCHWORDS:	Criminal Law and Procedure - indecently assault female under 16 years - carnal knowledge - interlocutory appeal - application for permanent stay of proceedings - principles applicable - delay - uncertainty of dates - whether unfair prejudice to accused - illness of accused and his wife - prosecutions barred by statute if complainant over 14 years at time of alleged offences - whether evidence capable of satisfying jury complainant under 14 years at relevant time - whether prosecutions doomed to failure
LEGISLATION CITED:	Crimes Act 1900 ss 71, 76, 78 Criminal Appeal Act 1912 s 5F
CASES CITED:	Dyers v The Queen [2002] HCA 45, 210 CLR 285 House v The King (1936) 55 CLR 499 Jago v The District Court of New South Wales (1989) 168 CLR 23 Longman v The Queen (1989) 168 CLR 79 R v Alexandroaia (1994) 81 A Crim R 286 R v Austin (1995) 84 A Crim R 374 R v BWT [2002] NSWCCA 60, 54 NSWLR 241 R v Davis (1995) 81 A Crim R 156 R v Hakim (1989) 41 A Crim R 372 R v Helmling (CCA - 11 November 1993) R v Kennedy (unrep - NSWCCA - 9 December 1998) R v Littler [2001] NSWCCA 173, 120 A Crim R 512 R v Nicholson (1998) 102 A Crim R 459 R v Tolmie (CCA - 7 December 1994) Rodway v The Queen (1990) 169 CLR 515
PARTIES :	Regina v Frederick Westley
FILE NUMBER(S):	CCA 60002/04
COUNSEL:	D C Frearson (Crown) P Byrne SC (Applicant)
SOLICITORS:	S Kavanagh (Crown) Holman Webb Solicitors (Applicant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/0230
LOWER COURT JUDICIAL OFFICER :	Nash ADCJ

- 8 -

60002/04

DUNFORD J
HIDDEN J
ADAMS J

FRIDAY, 6 AUGUST 2004

REGINA v FREDERICK WESTLEY

Judgment

1 DUNFORD J: This is an application pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 seeking leave to appeal against the refusal of Nash ADCJ to grant a permanent stay of proceedings on an indictment against the applicant, Frederick Westley containing three counts of sexual assault allegedly committed approximately 25-30 years ago. The precise offences charged in the indictment are as follows:

1. Between 27 December 1973 and 2 January 1975 indecently assault female under the age of 16 years with act of indecency contrary to s 76 of the Crimes Act 1900.

2. Between 1 January 1974 and 3 February 1975 carnal knowledge of female aged between 10 and 16 years contrary to s 71 of the said Act.

3. Between 1 January 1974 and 3 February 1975 assault female under the age of 16 years with act of indecency contrary to s 76.

2 The applicant was charged on 13 October 1999 and committed for trial on 1 March 2002. The application for the stay was filed on 20 January 2003 and judgment delivered on 16-17 December 2003. At the time of the alleged offences, the applicant was aged about 46 or 47 and is now almost 77 whilst the complainant was then aged about 12 or 13 and is now aged 42.

3 The grounds of the application argued before Nash ADCJ were summarised in his Honour’s judgment as follows:

(a) Prejudice to the applicant caused by reason of the very lengthy delay of the commencement of the prosecution, the applicant having been charged on 13 October 1999 that is between about 26 or 25 years after the alleged offences.

(b) The complainant’s treatment by Dr Vaux (likely to cause her to be in an hypnotic state) should in the circumstances result in a finding that she had previously had her memory of the events repressed and then revived, or at least her memory was thereby distorted, therefore all her evidence was inadmissible.

(c) (Alternatively to (b)) Nevertheless Dr Vaux’ treatment combined with the complainant’s drug abuse, criminal record, the therapy she received from Mr Phiskie, including her at least looking at the later discredited book “The Courage to Heal”, her varying evidence as to her age when the alleged offences occurred, the details given thereof by her to others and her state of memory of associated matters should result in the finding that her evidence is completely unreliable and effectively the prosecution is doomed to fail.

(d) The impact of a trial on the health of the applicant and his wife, who knows nothing of the allegations or pending trial, will be catastrophic and such it would offend common humanity to require him to stand trial.

4 The applicant’s case at first instance was that each of the above matters of itself justified a finding that the trial of the applicant would be unfair and result in an order for a permanent stay, but certainly all of those matters combined did so.

5 The grounds of appeal to this Court were more limited and were as follows:

1. That the proceedings were doomed to fail and that the continuation of the trial proceedings is oppressive and amounts to an abuse of process.

2. That, although the learned trial judge did refer to the decision of the High Court in Jago v The District Court of New South Wales (1989) 168 CLR 23, he failed to correctly apply the principles set out in that case.

3. That the learned trial judge failed to consider what directions could be drafted to overcome the dangers caused by long delay in complaint, the absence of contemporaneous records, prior disclosures and the history of the mental state of the complainant.

6 There is no further claim that the plaintiff’s treatment by Dr Vaux was likely to cause her to be in a hypnotic state or that her memory of the events in question had been repressed and then revived. Although not the subject of a separate ground of appeal, the applicant sought to argue that the ill health of the applicant and his wife was nevertheless relevant and went to the first ground of appeal on the basis that the trial proceedings would be oppressive and constitute an abuse of process.

7 In her original statement to police dated 24 June 1998, the complainant said that in December of the year she turned 12, which was 1973, her parents had a New Year’s Eve party at their house in Maroubra and that the applicant and his wife were guests. She said that during the night in the car port area, the applicant started to kiss her on the lips and then ran his hand from the top of her thigh into her underpants to between her legs and she felt two fingers penetrate her vagina.

8 She said that in the school holidays following the New Year’s Eve party, she was doing some work for the applicant, who ran a dry cleaning business, delivering pamphlets and doing general cleaning work, and that one day during this period, he drove her in his car to an abandoned army barracks near the corner of Fitzgerald Avenue and Bunnarong Road, Maroubra where there is presently a gymnasium. She said he drove his car into the building and had penal vaginal intercourse with her in the car.

9 As to the third count, she said that on another day, not long afterwards he drove her to the same abandoned army barracks as previously and got her to give him oral sex, resulting in him ejaculating into her mouth.

10 His Honour summarised a number of other relevant facts substantially as follows:

· On 31 January 1974, the complainant began her secondary education at Maroubra Bay High School in first form.

· In the summer of the early 1970’s, there was a New Year’s Eve party held at the complainant’s parents’ home in Maroubra.

· Ethel (Schultz) the mother of a friend of the complainant (Heather Schultz) stated that this party was in 1974.

· The complainant’s father remembers the party but he was unable to assist as to when it was but remembers that in the course of a New Year’s Eve party at his home there was a complaint that Heather Schultz had scratched the applicant.

· On 10 October 1977, the complainant left High School when she was in fourth form.

· In 1979, the complainant began a relationship with David Watson.

· In June 1981, the complainant gave birth to twins and with David Watson and the twins moved to Perth.

· In about 1985, the complainant told David Watson that she had been raped by this person when she was 13 to 14 years old.

· On 21 November 1989, Dr Vaux began treating the complainant.

· On 6 February 1995, in the course of either a treatment or consultation, Dr Vaux made a note as follows:

“Thinking of “suing” a man who abused her aged 12, was drinking on sly, molested her – also she was employed by him. Three X further, episode of intercourse 2x2/12. Later ran away from home. Sees it as beginning of problems. Did try to do something 8 years ago.”

· In 1996, the complainant rang the Police Royal Commission. She was not informed of any outcome.

· On 10 September 1997, the complainant reported assaults to Snr Const Bassingthwaighte.

· On 17 April 1998, the complainant was referred to the Eastern and Central Area Sexual Assault Service by Maroubra Police after making initial enquiries with them about reporting a sexual assault perpetrator against her when she was in her early teens (13 to 14 years old).

· On 30 April 1998, the complainant began counselling with social worker, Tony Phiskie, who provided her with the book, “The Courage to Heal” for her to read.

· On 24 June 1998, Phiskie accompanied the complainant to Maroubra Police Station where she made a full statement to a police officer in respect of the matters alleged in the indictment.

· On 7 October 1999, the applicant was interviewed at his business premises by Detective Pincham.

· On 13 October 1999, the applicant was charged by way of Court Attendance Notice.

· On 20 October 2000, committal proceedings began in the Downing Centre Local Court and the complainant was cross-examined on that day.

· On 6 December 2000, committal proceedings continued. Dr Vaux gave evidence.

· On 1 March 2002, committal proceedings continued with evidence from Dr Roberts. This concluded the committal proceedings and the applicant was committed for trial to the Sydney District Court for arraignment on 8 March 2002.

· On 13 June 2002, an extensive letter was written by the applicant’s solicitors to the Director of Public Prosecutions requesting that the proceedings be no-billed, which request was refused by letter from the Director dated 24 July 2002.

11 In cross-examination at the committal, the complainant conceded that she had a criminal history in Western Australia involving crimes of dishonesty, drug supply and drug possession; and that for a considerable period, she was addicted to drugs and led a criminal lifestyle.

12 In his judgment, Nash ADCJ, after an extensive review of the evidence dealt seriatim with the various grounds of the application. As to the prejudice to the applicant caused by the delay, his Honour referred to Jago v The District Court of New South Wales (1989) 168 CLR 23, R v Nicholson (1998) 102 A Crim R 459 at 467-8, R v Davis (1995) 81 A Crim R 156 and other cases, and noted that delay itself is not sufficient, that actual prejudice by reason of the delay must be shown, and is not presumed, although the longer the delay, the more likely it will be that actual prejudice can be shown.

13 He concluded that the only prejudice to this applicant in a properly conducted trial was such as arose from the delay. His Honour noted that even if the year could not be specifically determined, the occasion of the allegation in the first count was the night of a New Year’s Eve party at the house of the complainant’s parents at which the applicant and his wife were present, and there was no suggestion that there was more than one such occasion, whilst the events charged in the second and third counts were alleged to have occurred in the school holidays of the January following the New Year’s Eve party, whilst the complainant was doing some work for the applicant.

14 On this, or any other point, there was no evidence from the applicant, and the only relevant evidence was from his solicitor, whose affidavit said that he was instructed that the applicant held no work records, appointment books or diaries in respect of any of the periods relevant to the indictment, that all such records as existed had long since been destroyed or lost and that the applicant had since sold his business. His Honour observed that the applicant may not have kept any record of wages paid to the complainant during that period, although the applicant or his wife may have kept a diary which may have recorded the party, but observed that the solicitor’s affidavit did not specify any instructions as to whether or not the applicant had a memory of the particular party, which led him to infer that he probably did have a memory of the party, and of the complainant working for him in the school holidays.

15 As to the second ground (that the complainant’s evidence was inadmissible being based on hypnosis, repressed and revived memory), his Honour reviewed the medical evidence and found the ground not made out. As there is no application for leave to appeal in respect of this ground, it is not necessary to consider it any further.

16 As regards the submission that the applicant’s evidence was completely unreliable and that accordingly, the prosecution was doomed to failure, his Honour reviewed the complainant’s evidence and notwithstanding the various criticisms which could be, and were, made concerning her lifestyle in the intervening years, found that her evidence on the essential matters had the ring of truth about them, although her evidence as to peripheral matters including times, forms of complaint, etc could lead a tribunal of fact to consider the whole of her evidence unreliable, particularly in the light of the numerous directions and warnings which the trial judge would be required to give. However he considered that, particularly if the applicant did not give evidence at the trial, a properly instructed jury could find the applicant guilty of one of more of the offences charged and consequently the proceedings were not doomed to failure.

17 In relation to the health of the applicant and his wife, his Honour referred to R v Hakim (1989) 41 A Crim R 372 and R v Littler (2001) 120 A Crim R 512, and the medical reports which were before him from the applicant’s general medical practitioner, Dr Craig, and concluded that it would not offend common humanity to require him to stand trial, and so it was not one of those rare cases where by reason of health, age and delay, a stay should be granted.

18 He also considered the various grounds in combination and concluded that no basis had been established for permanently staying the proceedings.

19 In R v Kennedy (unrep – NSWCCA – 9 December 1998) at 5, I summarised the principles that apply in respect of appeals of this nature as follows:

“As the power to grant a stay is discretionary, the ordinary principles relating to appeals in respect of the exercise of discretion apply; see House v The King (1936) 55 CLR 499 at 504 to 5. In R v Alexandroaia (1994) 81 A Crim R 286 at 290, this Court said in relation to appeals on discretionary matters:
There is a strong presumption in favour of the correctness of the decision, but that presumption will be overcome where it is shown that the judge has acted on some wrong principle, or has given weight to extraneous or irrelevant matters, or has failed to give weight to relevant considerations, or has made a mistake as to the facts. Even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellate court may infer that there has been a failure to properly exercise that discretion.
The right to a fair trial is basic to our criminal justice system and to ensure that innocent people are not convicted of criminal offences, a stay of proceedings may be granted to prevent an unfair trial: Jago v District Court of New South Wales (1989) 168 CLR 23. But that right must be balanced against the right of the community to expect that persons charged with serious criminal offences are brought to trial and the grant of a stay of proceedings is discretionary and the circumstances will usually have to be extreme for such relief to be given. The onus lies on the applicant for a stay to demonstrate that the disadvantage or prejudice which he would suffer by refusal of a stay is, in a relevant sense, unacceptable to the extent that the trial would be unfair: R v Helmling (CCA – 11 November 1993) at p 4 and authorities there cited. See also R v Tolmie (CCA – 7 December 1994).”

20 The first ground of appeal is something of a “rolled up” ground in that it claims that the prosecution is doomed to fail and that the continuation of the trial proceedings is oppressive and an abuse of process. It was submitted that, because of the delay, any trial of the applicant would be unfair to him, and because the complainant’s evidence was unreliable, the prosecution would ultimately fail and the applicant would be acquitted. In one sense, these submissions are contradictory. The reason why a trial is stayed on the ground that the trial would be unfair to the accused is that it could result in the conviction of an innocent person, but the conviction of an innocent person is not possible if the prosecution is bound to fail.

21 As Brennan J pointed out in Jago at 47, there are a number of circumstances which can present obstacles to a fair trial, such as prior adverse publicity, death or absence of material witness, or absence of competent representation, but they do not cause the proceedings to be permanently stayed. His Honour went on:

“When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.”

22 In the same case, Mason CJ said at 34:

“To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences…Where delay is the sole ground of complaint, an accused seeking a permanent stay must be able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute.”

23 The substance of the applicant’s complaint is that because the applicant has given different versions as to whether she was 12 or 13 or even 14 years old at the time, she is unable to pinpoint the precise year of the New Year’s Eve party at which the first assault occurred and accordingly, the applicant is required to account for a three-year period of his life some 30 years ago and this places an intolerable burden upon him. It was submitted that the indictment already alleges a lengthy period as the dates within which the offences are alleged to have been committed, that this has already been amended once and, if the applicant was in fact 14 years old at the time, it would need to be amended again, and that such amendment would not be granted. It was further submitted that because of the imprecision of the date, he is not able to avail himself of possible alibi witnesses who may have been available if the dates had been specified with precision, and the proceedings brought much more promptly.

24 I am satisfied that his Honour took all these considerations into account. It is not the case that the applicant is being required to account for a three-year period. He is being called upon to recall a New Year’s Eve when he attended a party at the home of the complainant’s parents, and the January school holidays immediately following that party in one of two or possibly three years. There may be some doubt and confusion about which year it was, but there is no doubt about the occasion and the period of the holidays.

25 Moreover, in relation to the second and third counts, not only are they identified as occurring in the school holidays following the New Year’s Eve party previously referred to, but each of them are alleged to have occurred in specific premises at a particular address, namely on the corner of Fitzgerald Avenue and Bunnarong Road, Maroubra where there was formerly an abandoned army barracks, but presently a gymnasium. The applicant who lived and worked in the area for many years is no doubt familiar with the location of the premises and would know whether there was formerly an abandoned army barracks on the site; if he did not know, it could presumably be checked with the local council’s records. He would also know whether he ever drove the complainant in his car inside the said army barracks and if so, for what purpose, as it would be unlikely to be part of her duties to go there whilst employed by him delivering pamphlets.

26 In a case like the present where the occasions and the locations are specifically identified, the actual date is of less importance from the point of view of an accused defending the charges, and if the Crown were to seek to further amend the dates in the indictment to include the possibility that the relevant dates were 1975-6 I for myself see no reason why it would not be proper for such amendment to be allowed, subject to the possible relevance of s 78 of the Crimes Act as it stood at the relevant time, which I deal with separately at the end of this judgment.

27 Of course, in a case such as this where there has been a lengthy delay in complaint in a sexual assault case, the judge would be required to give a direction in accordance with Longman v The Queen (1989) 168 CLR 79, and the other warnings and directions which are conveniently summarised by Wood CJ at CL in R v BWT [2002] NSWCCA 60, 54 NSWLR 241 at para [32]. These are the things that the Court can do to prevent the trial being unfair, and provided these warnings are given, the accused will receive a fair trial.

28 His Honour paid particular attention to the prejudice which it was alleged the applicant would suffer by reason of the delay in complaint, and I can see no error in his Honour’s approach or his conclusion. Similarly, he considered the presentation of the complainant as a witness and was not satisfied that the proceedings were doomed to failure, although he accepted that the applicant might be acquitted, which is a very different thing. Once again, I can see no error in his Honour’s approach or his conclusion.

29 The second ground of appeal was that, although the learned primary judge referred to the decision in Jago, he failed to correctly apply the principles set out therein, and reference was made to dicta of Deane J at 60-61. It was submitted that the effect of that passage is that a judge considering an application for a stay must consider:

i. the length of the delay;
ii. the reasons for the delay;
iii. the responsibility of the accused for the delay;
iv. the proven or likely prejudice occasioned to the accused; and
v. the public interest in the disposition of serious offences and the conviction of those guilty of crime.

30 However, although his Honour described these “five heads” as providing convenient reference points to determine whether the effect of the delay in a particular case will necessarily lead to an unfair trial, his Honour went on to say at 61:

“They should not however be treated as a code or permitted to divert attention from the fact that what will ordinarily be involved in answering that question is the formation of a value judgment in the context of the nature and seriousness of the alleged offence and having regard to all other relevant circumstances.”

31 And his Honour had previously said at 60:

“An order that proceedings be permanently stayed will only be justified in the exceptional cases which I have indicated namely, where it appears that the effect of the unreasonable delay is, in all the circumstances, that any subsequent trial will necessarily be an unfair one or that the continuation of the proceedings would be so unfairly oppressive that it would constitute an abuse of process.”

32 In the present case, Nash ADCJ did take account of the length of the delay whilst the reason for the delay namely the failure of the complainant to complain earlier, and the fact that it was no responsibility of the applicant were obvious. His Honour paid particular attention to whether there was any proven or likely prejudice occasioned to the accused by the delay which could not be cured by appropriate directions. Although not expressed, it is implicit in his Honour’s judgment that he had in mind the public interest in the conviction of those guilty of serious crime; and in any event, a failure to take this factor into account could not be any disadvantage to the applicant. I can see no basis on which it can be said his Honour misapplied the ratio in Jago’s case.

33 The third ground of appeal was that the learned primary judge failed to consider what directions could be drafted to overcome the dangers caused by the long delay in the complaint, the absence of contemporaneous records, prior disclosures and the history of the mental state of the complainant. The short answer to this ground is that his Honour was not asked to consider what directions could be drafted to overcome any dangers occasioned by the delay or the other matters referred to. What his Honour did say was that various warnings and directions would be necessary, but it was not his task but that of the trial judge, to draft and give the appropriate directions. As I have already pointed out, a catalogue of the necessary directions has been set out in R v BWT and the necessary requirements of the Longman direction are summarised by Sully J in that case at para [95] (3), approved by Kirby J in Dyers v The Queen [2002] HCA 45, 210 CLR 285 at [55].

34 The other ground on which it was alleged the prosecution of the applicant was oppressive was the ill health of himself and his wife.

35 His Honour had before him four reports by the applicant’s general practitioner, Dr Peter Craig dated respectively 19 October 1999, 14 April 2002 and 31 January and 1 September 2003. The relevant parts of his last report were as follows:

“As I have stated in my previous letters, dated 19 October 1999 and 14 April 2002, Mr Westley suffers from advanced coronary disease. His condition has been stable since his coronary artery bypass surgery, in that he has not required further hospitalisation, though he remains symptomatic. Principally Mr Westley suffers from chest pain and palpitations usually brought on by emotional stress.
Mr Westley’s wife, Marie, is also my patient. She suffers from hypertension and two years ago was profoundly ill with viral pericarditis. Mrs Westley has remained unaware to date that her husband is involved in criminal proceedings.
In my opinion, Mr Westley’s heath has been very significantly adversely affected by the emotional burden of facing criminal charges, particularly without the understanding and support of his wife. I am extremely concerned that the immediate prospect of criminal conviction and imprisonment may suffice to precipitate a life-threatening cardiac event. Manifestly then, the trauma of a trial and actual incarceration would amplify the risk such an event.
Furthermore, I consider that the revelation to Mrs Westley of her husband’s legal predicament would be apt to precipitate in her an exacerbation of cardiac symptoms. Similarly, the experience of her husband facing trial, or the ongoing stress of his imprisonment would place her at greater risk.”

36 Both before Nash ADCJ and before us, the applicant relied on what was said in R v Hakim (1989) 41 A Crim R 372. In that case, not only did the applicant have a long history of ischemic heart disease, complicated by a complete heart block, but suffered a range of physical, neurological and psychological conditions and his memory had been affected by his condition and subsequent treatment. Lee J held that to allow the charges to stand in the light of the medical evidence and the applicant’s continuing deterioration would be “out of accord with common humanity” when he had already to some extent suffered “prejudice in regard to his memory” on account of the delay. The Court of Appeal held that there was no error of principle in this approach and there was material to support the decision, but Kirby P did say at 377: “It will be a rare case that intervening illness or the physical or mental condition of the accused will bring a court to such a conclusion” i.e. that it would offend common humanity to allow the prosecution to proceed.

37 A stay of proceedings was granted in R v Littler [2001] NSWCCA 173, 120 A Crim R 512 where the applicant was aged 74 and in ill health with memory problems and there had been a delay of between 38 and 46 years since the time of the alleged offences. In addition, much evidence (including from potential witnesses) was no longer available.

38 On the other hand, in R v Austin (1995) 84 A Crim R 374, Owen J in the Supreme Court of Western Australia held that the poor health of the 87 year old applicant in that case facing sexual assault charges between 13 and 45 years old with his impaired capacity to organise information and recall events was relevant to how the trial should be run and how the jury should be directed, rather than compelling a conclusion that any trial must necessarily be unfair.

39 Littler and Austin were both cases where the applicant was having memory problems. That is not claimed in the present case. Nash ADCJ had Dr Craig’s reports before him, he had regard to the test laid down in Hakim namely, whether to allow the charges to continue would be “out of accord with common humanity” and concluded that it would not. In my opinion, such a view was open on the evidence and no error calling for the intervention of this Court has been shown.

40 Certainly the applicant has health problems, but all the doctor could say is that the stress of a trial might cause his condition to deteriorate, not that it would or probably would, and not to what extent or with what consequence. Whether the applicant confides in his wife about the trial is a matter for him, notwithstanding her ill health. That may not necessarily be the reason he has not confided in her to date.

41 During the hearing of the appeal, attention was for the first time directed to the provisions of s 78 of the Crimes Act (since repealed) which provided that no prosecution for an offence under various sections including ss 71 and 76 could be commenced after the expiration of 12 months from the date of the alleged offence if the person upon whom the offence was alleged to have been committed was at the time of the alleged offence over 14 and under 16 years of age. The Court thereupon gave leave to the parties to file additional written submissions in respect of this issue, and such submissions have now been received.

42 The offence charged in the first count is alleged to have been committed at a New Year’s Eve party on the 31 December 1973 or 1974, whilst the offences charged in counts 2 and 3 are alleged to have been committed in January 1974 or January 1975. The complainant was born on 19 September 1961 and consequently was 12 or 13 years old at the dates specified in the various counts.

43 However, if the events alleged took place on New Year’s Eve 1975 and in January 1976, the plaintiff was 14 years old at the time and the prosecutions are statute barred because, although the section has been repealed as from 3 May 1992, the applicant retains the benefit of the limitation period: Rodway v The Queen (1990) 169 CLR 515 at 518. The question therefore arises in the context of the present proceedings whether the available evidence is capable of establishing beyond reasonable doubt that the complainant was less than 14 years at the time of the alleged offences i.e. that they occurred in the summer of 1973/74 or that of 1974/75 rather than during 1975/76. If the evidence is so capable, it is a matter for the jury to determine, together with the other elements of the offence; but if incapable of excluding the reasonable possibility that the complainant was in fact 14 years of age at the time, the prosecution is doomed to failure and the applicant is entitled to a permanent stay.

44 A number of witnesses described the relevant New Year’s Eve party as being in the “early 1970’s” or when the complainant and the other children were “about 12” and this suggests that it was 1973. The complainant, in her statement of 24 June, firmly asserted that the party was in the December of the year she turned 12 years i.e. that is 1973. In her evidence on the application for a stay, she confirmed that the party was in 1973, and later said she was 12 or 13 at the time, but in cross-examination, she conceded that she possibly told her former husband that she was 13 or 14 at the time the incident occurred and she said that she believed she was in second form in the summer holidays of 1973/74 when the incidents took place, although other evidence established that she was in second form in 1975. It was suggested to her in cross-examination that she told Mr Phiskie, a counsellor, that it occurred when she was 13 or 14 and she agreed that could be the fact, and that Mr Phiskie’s notes revealed an allegation that the events occurred “when she was in her early teens (13-14)” although a later reference records “about 13”.

45 The Crown concedes that although the general thrust of the evidence is to the effect that the complainant was under 14 years at the relevant time, such evidence is realistically incapable of proving that fact beyond reasonable doubt.

46 The Crown therefore seeks to adduce fresh evidence, being a further statement by Dr Leslie Muzikants, who as a child attended the New Year’s Eve party, which she previously described as being “in the early 70’s”. She now dates the New Year’s Eve party as either 1973 or 1974 by reference to a particular dress she remembers wearing at that time, and to the fact that by Christmas/New Year 1975 she herself was 16 years old, dating boys and not attending parties at the complainant’s parents’ home. This evidence, if accepted, along with the other evidence on the stay application supports the proposition that the complainant was under 14 at the relevant time, but whether it would be capable of satisfying a jury beyond reasonable doubt may be another matter.

47 Dr Muzikants further says that when the complainant was 14, she had gone “off the rails” and had run away from home and that she dropped out of High School in Year 3 (which would be 1976), but Counsel for the applicant seeks to rely on school records by way of fresh evidence indicating that the complainant left school in Year 4 in October 1977; although it occurs to me that if she was truanting and running away from home, the date recorded may not be a true indication of when she last attended school. The applicant therefore submits that the evidence is still incapable of satisfying a jury to the necessary standard of the complainant’s age at the relevant date.

48 This Court has a general power to admit fresh evidence in appeals under s 5F, but that section covers a variety of interlocutory appeals whereas, as noted earlier, the issue for this Court on appeals in respect of applications to stay proceedings is whether the primary judge has erred in the exercise of his discretion. The limitation period mandated by s 78 was never referred to or considered by Nash ADCJ so he could not have erred in respect of it. It was submitted on behalf of the applicant that the uncertainty of the dates of the alleged offences was an issue before his Honour but that was in a different context namely, whether the uncertainty as to the dates in respect of a period so long ago imposed an unreasonable burden on the applicant in seeking to defend himself, not on whether the Crown could satisfy the jury beyond reasonable doubt that the alleged offences were committed before the complainant’s 14th birthday.

49 As I am satisfied there was no error on the part of Nash ADCJ and the appeal is from the exercise by him of a discretion, the appeal should in the ordinary course of events be dismissed, but because of the fresh issue raised in relation to s 78, I was inclined to remit the application to the District Court so that it could fully consider that fresh issue.

50 However, I have ultimately come to the conclusion that all the available evidence including the fresh evidence before us, is incapable of satisfying a jury beyond reasonable doubt that the complainant was under 14 years at the time of the alleged offences, so that the prosecution is ultimately doomed to failure and to remit the matter to the District Court would, in these circumstances be a waste of time and serve no useful purpose.

51 For these reasons, application for leave to appeal should be granted, the appeal allowed, the order of the District Court set aside and in lieu thereof it be ordered that the prosecution be permanently stayed.

52 HIDDEN J: I agree with Dunford J.

53 ADAMS J: I also agree with Dunford J.

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Last Modified: 08/17/2004