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R v Westley

R v Westley

Case [2004] NSWCCA 192 6 August 2004

Statute of Limitations

Admissibility of Evidence

Criminal Law

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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

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…

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 Westley

Details

AGLC: R v Westley [2004] NSWCCA 192
Case: [2004] NSWCCA 192
Decision Date: 6 August 2004

CaseChat Overview and Summary

In the matter of the Queen versus Westley, the respondent was accused of indecently assaulting a female under 16 years of age. The case was heard by the High Court of Australia. The primary issue before the court was whether the trial judge had erred in not staying the proceedings against the respondent due to delay and uncertainty of dates, which allegedly caused unfair prejudice to the accused. A further consideration was whether the respondent's illness and that of his wife constituted special circumstances warranting a permanent stay.

The court considered the principles applicable to interlocutory appeals and applications for a stay of proceedings. It noted that the respondent's illnesses, while serious, did not constitute special circumstances. The court also held that the uncertainty of dates did not necessarily result in unfair prejudice to the accused, as the respondent had been aware of the allegations for some time. Additionally, the court found that the evidence presented was capable of satisfying a jury that the complainant was under 14 years of age at the time of the alleged offences, thereby avoiding the bar of the statute of limitations. The court ultimately concluded that the trial judge had not erred in denying the application for a permanent stay of proceedings.

Orders