R v Wrigley - [1998] QCA 412

IN THE COURT OF APPEAL

[1998] QCA 412

SUPREME COURT OF QUEENSLAND

C.A. No. 330 of 1998

Brisbane
[R v. Wrigley]

THE QUEEN

BRUCE STEPHEN WRIGLEY

Appellant

McPherson JA
White J
Chesterman J

Judgment delivered 4 December 1998
Separate reasons for judgment of each member of the Court; each concurring as to the order made.
APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:

CRIMINAL LAW - trial - delay - appeal against conviction - application for permanent stay of prosecution refused by trial judge - trial held five and a half years after offences committed - prosecution responsible for delay - potential witnesses unable to be located - decision by accused not to give evidence at trial - evidence of complainant largely uncontradicted - likelihood that evidence of missing witnesses would have assisted accused - whether accused deprived of chance of fair trial - whether accused suffered prejudice resulting from delay in bringing prosecution.
Jago v. District Court (NSW) (1989) 168 CLR 23
Walton v. Gardiner (1993) 177 CLR 378
Counsel: Mr A Rafter for the appellant
Mr D Meredith for the respondent
Solicitors: Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the
respondent
Hearing Date: 25 November 1998
REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 4 December 1998

I agree with the reasons of Chesterman J. for saying that this appeal must be dismissed. The appellant’s real difficulty is, as his Honour has pointed out, that there is simply no evidence on the basis of which it can be said that he suffered prejudice as a result of delay in bringing the prosecution. He gave no evidence in support of his application to stay the proceedings. It is therefore not possible to say whether the missing witnesses would have helped to confirm his account of events. They might well have contradicted it. The same goes for the suggestion that they or someone else might have provided an alibi. There is simply nothing to suggest that the appellant was absent on the occasion in question.
The whole matter is simply left to depend on speculation. Unless it is the law that mere delay in instituting criminal proceedings necessarily calls for their being stayed, the application before the primary judge was bound to fail. The authorities show that that is not the law. It follows that the appeal must be dismissed.
REASONS FOR JUDGMENT - WHITE J
Judgment delivered 4 December 1998
I agree with Chesterman J that this appeal should be dismissed. As his Honour has observed, the real weakness in the appellant's application before the learned trial judge for a stay was the failure to advance anything substantial which would tend to the conclusion that a fair trial could not be had.
In effect, the submission as to alibi was that the delay was such as to deprive the appellant of the opportunity to remember if he had an alibi, but that submission was supported by no other evidence even from the Bar table as to…

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 Wrigley

Details

AGLC: R v Wrigley [1998] QCA 412
Case: [1998] QCA 412
Decision Date: 4/12/1998

CaseChat Overview and Summary

The appeal was heard by the Supreme Court of Western Australia, with the appellant contesting the conviction and sentence imposed by a lower court. The appellant, Wrigley, was convicted of unlawfully and indecently assaulting Y, and of unlawfully assaulting Y thereby doing her bodily harm. The offences were committed on 9 January 1993, and Wrigley was not charged until January 1998, five and a half years later. Wrigley sought a permanent stay of prosecution on the grounds that the delay in investigation had deprived him of any chance of a fair trial, but this application was refused by the trial judge and the trial proceeded. Wrigley now appealed against the conviction on the basis that the delay deprived him of a fair trial. The legal issues the court had to decide were whether the delay in bringing the prosecution deprived Wrigley of a fair trial and whether he suffered prejudice resulting from the delay. The court held that the appeal must be dismissed as there was no substantial evidence to support the claim that the delay deprived Wrigley of a fair trial. The complainant's evidence was largely uncontradicted, and there was no evidence to suggest that potential witnesses would have assisted Wrigley. The court found that there were no exceptional circumstances to warrant a permanent stay of prosecution. The court concluded that the delay did not necessarily call for the prosecution to be stayed, and the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J (dissent)

The whole matter is simply left to depend on speculation. Unless it is the law that mere delay in instituting criminal proceedings necessarily calls for their being stayed, the application before the primary judge was bound to fail. The authorities show that that is not the law. It follows that the appeal must be dismissed. REASONS FOR JUDGMENT - Judgment delivered 4 December 1998 I agree with Chesterman J that this appeal should be dismissed. As his Honour has observed, the real weakness in the appellant's application before the learned trial judge for a stay was the failure to advance anything substantial which would tend to the conclusion that a fair trial could not be had. In effect, the submission as to alibi was that the delay was such as to deprive the appellant of the opportunity to remember if he had an alibi, but that submission was supported by no other evidence even from the Bar table as to why this would be so. As his Honour has noted, there was nothing to suggest that the persons who might have been witnesses would assist the appellant. On the complainant's account they would not have done so. Whilst deprecating the delay in dealing with this matter by the investigating authority, there were no exceptional circumstances such as to make the decision not to grant a stay erroneous. On 31 August, 1998 the appellant was convicted of unlawfully and indecently assaulting Y, and of unlawfully assaulting Y thereby doing her bodily harm. The offences were both committed on 9 January, 1993, five and a half years earlier. The appellant was not charged with the offences until January, 1998. Prior to being charged he had no notice that Y had complained to the police about his conduct. When the case was called on for trial, counsel for the appellant sought an order from the trial judge that the prosecution be permanently stayed on the ground that delay in the investigation of the complaint had deprived him of any chance of a fair trial. The trial judge refused the application and the trial proceeded. The Crown called the complainant, Y, and two police officers, one of whom spoke to the complainant shortly after the occasion of the assaults. She noticed bruising to the complainant and recommended that she consult a doctor. The other police officer had been given the task of investigating the complaint in or about December, 1997. Y’s evidence was that on the occasion of the assaults she was sixteen years old. She knew the appellant and went to his house with some friends for a party which appears to have been a small and quiet affair. She went to bed at about nine o’clock in a spare bedroom at the back of the appellant’s house. She was fully clothed, wearing jeans and a T-shirt. She went to sleep but was woken sometime during the night by a male who jumped onto the bed and requested intercourse. She refused but, undeterred, he fondled her breasts and put his hand between her legs on the outside of her jeans. When the complainant resisted she was struck on the face by a closed fist. She was able to escape from the bedroom and went to the lounge where a friend of hers, Ms Jones, was sleeping on the sofa. While speaking to Ms Jones, she was struck from behind by the male who had followed her from the bedroom and whom she could identify in the light as the appellant. She was the subject of a further attempt of violence by the appellant who was stopped by the presence of another occupant of the house, a male described only by the name “Charlie”.

Ratio Decidendi

Legal Principle Established

Established by:

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CATCHWORDS:	CRIMINAL LAW - trial - delay - appeal against conviction - application for permanent stay of prosecution refused by trial judge - trial held five and a half years after offences committed - prosecution responsible for delay - potential witnesses unable to be located - decision by accused not to give evidence at trial - evidence of complainant largely uncontradicted - likelihood that evidence of missing witnesses would have assisted accused - whether accused deprived of chance of fair trial - whether accused suffered prejudice resulting from delay in bringing prosecution.
Jago v. District Court (NSW) (1989) 168 CLR 23 Walton v. Gardiner (1993) 177 CLR 378
Counsel:	Mr A Rafter for the appellant Mr D Meredith for the respondent
Solicitors:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	25 November 1998