Regina v F.M.D. - [2002] NSWCCA 14

CITATION: Regina v F.M.D. [2002] NSWCCA 14

FILE NUMBER(S): CCA 60205/00

HEARING DATE(S): 4 February 2002

JUDGMENT DATE:
14 February 2002

PARTIES :

Regina
F.M.D.

JUDGMENT OF: Wood CJ at CL at 1; Sully J at 2; Dowd J at 40

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 94/11/1152

LOWER COURT JUDICIAL
OFFICER : Stewart ADCJ

COUNSEL : R. Hulme - Crown
J. Stratton - Respondent

SOLICITORS: S. E. O'Connor - Crown
D. J. Humphreys - Respondent

LEGISLATION CITED: Crimes Act 1900 (NSW)

CASES CITED:
Jago v District Court (NSW) (1989) 168 CLR 23
Walton v Gardiner (1993) 177 CLR 378
Reg v Nicholson (1998) 102 A Crim R 459
House v The King (1936) 55 CLR 499 at 504

DECISION: Order of District Court affirmed.

- 9 -IN THE COURT OF

60205/00
WOOD CJ at CL
SULLY J
DOWD J

Thursday 14 February 2002

regina V f.m.d

Judgment

1 WOOD CJ at CL: I have read the draft of the reasons for judgment of Sully J and agree both with those reasons and with the order proposed.

2 SULLY J: This is a Crown appeal against an interlocutory judgment of his Honour Acting Judge Stewart QC given in the District Court on 3 March 2000. His Honour’s order stays permanently proceedings then pending in the District Court against the present respondent F.M.D. Those proceedings were criminal proceedings brought upon an indictment charging the respondent with five offences, each of which involved an element of sexual misconduct on his part towards a particular named complainant. One of the offences thus charged was an offence of inciting the complainant, then being a person under the age of 16 years, to an act of indecency towards him, the respondent. The remaining four charges all alleged sexual intercourse with the same complainant. Two of those four charges alleged sexual intercourse in circumstances of aggravation knowing that the complainant was not consenting. The remaining two of those four charges were laid in the alternative and charged sexual assault with a complainant who was at the material time above the age of 10 years and under the age of 16 years. The act constituting sexual intercourse was, in one case, an act of digital penetration; and in the other case, an act of penetration with a bottle. It goes without saying that all of the charges thus preferred against the respondent were charges of serious criminal misconduct; and that there is a clear and legitimate public interest in bringing those charges promptly to trial in order that justice may be done, and may be seen to be done, in connection with them.

3 The offences as charged were allegedly committed on or about 3 January 1994. The respondent was arrested on 20 January 1994. At that time one H.A.B, also, was arrested. She was charged, put simply, of having been a co-offender with the respondent.

4 On 2 November 1994 both the respondent and H.A.B were committed for trial at the Sydney…

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 Regina v F.M.D.

Details

AGLC: Regina v F.M.D. [2002] NSWCCA 14
Case: [2002] NSWCCA 14
Decision Date: 14 February 2002

CaseChat Overview and Summary

This case involves a Crown appeal against an interlocutory judgment of the District Court, which permanently stayed criminal proceedings against the respondent, F.M.D., who was charged with multiple serious sexual offences against a complainant under the age of 16. The lower court judge had found the delay in bringing the respondent to trial, along with the unavailability of a key witness and the destruction of physical evidence, to be grounds for the stay. The appeal questioned whether these factors warranted the permanent stay of proceedings.

The legal issues before the Court of Criminal Appeal were whether the extensive delay in the trial process, the destruction of physical evidence, and the uncertainty surrounding the availability of a key witness were sufficient to justify a permanent stay of the proceedings. The appeal focused on whether the District Court judge had correctly exercised his discretion in ordering the stay, and whether this decision constituted a miscarriage of discretion.

The Court of Criminal Appeal found that while each factor alone might not necessarily justify a permanent stay, when considered together, they created an unacceptable level of unfairness. The significant delay in bringing the respondent to trial, the destruction of critical physical evidence, and the uncertainty about the availability of a crucial witness combined to make a fourth trial fundamentally unfair. The Court upheld the lower court's decision, affirming that the stay order was not a miscarriage of discretion.

The Court of Criminal Appeal affirmed the order of the District Court, maintaining the permanent stay of the criminal proceedings against the respondent, F.M.D.

Orders