Regina v Henman

[2000] NSWCCA 58

CITATION:	Regina v Henman [2000] NSWCCA 58
FILE NUMBER(S):	CCA 60227/99
HEARING DATE(S):	08/03/00
JUDGMENT DATE:	8 March 2000
PARTIES :	Regina v Gregory Charles Henman
JUDGMENT OF:	Fitzgerald JA at 14; Abadee J at 1; Barr J at 15

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Judge Knight

COUNSEL :

D. C. Fearson - Crown/Respondent

P. Segal - Applicant

SOLICITORS:

S. E. O'Connor - DPP

Quire, Davidson & Easdown - Applicant

CASES CITED:

Jago v District Court of New South Wales (1989) 168 CLR 23

DECISION:

Leave to appeal is refused

IN THE COURT

OF CRIMINAL APPEAL

60227/99



FITZGERALD JA
ABADEE J
BARR J


WEDNESDAY 8 March 2000
REGINA v Gregory Charles HENMAN


JUDGMENT

1 ABADEE J: The applicant seeks leave to appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) against orders of Judge Knight in the District Court declining to stay certain proceedings, or, alternatively, granting a conditional stay pending appropriate medical examination of the complainant, who is an alleged victim in sexual assault proceedings. 2    The applicant was committed for trial on 28 August 1998 to the Dubbo District Court. The matter came before the District Court on 1 March 1999 and stood over to 10 March 1999 when a trial date was fixed for 10 May 1999. 3    A Notice of Motion was filed on 30 April 1999 seeking a number of orders, including an order by way of permanent stay of proceedings upon the ground that incidents giving rise to the complaint were old and that the Prosecution was part of a systematic course of discrimination against the applicant, as a male, and constituted improper use of the procedural functions of the court. 4    On 5 May 1999 further applications were made, including an application for an adjournment of the application for permanent stay. 5    The applicant seeks leave to appeal against his Honour's refusal to grant a permanent stay and his Honour's failure to order a conditional stay until the complainant be medically examined. Other orders sought, which are dealt with in his Honour's reasons for judgment, were not pursued any further. 6    The application for a stay before Judge Knight was supported by an affidavit of the applicant's solicitor. There was also an affidavit in support from an expert psychiatrist, who had been engaged by the applicant's solicitor to advise in respect of matters relating to the trial. 7    Before his Honour extensive submissions were put in support of the orders that were being contended for. The extensive submissions took two forms; first of all, there was the written submissions of counsel and second, by supplementary oral submissions put to the court. His Honour, in a careful and extensive judgment, dealt with each of the arguments, both written and oral. He then ultimately concluded that no relief as sought by the applicant should be granted. His Honour, after reviewing the arguments, having considered the relevant factual matters, concluded that this was not a case where it was felt that the applicant would not be able to get a fair trial, in the circumstances. 8    It is appropriate just to mention that the charges that were brought against the applicant related to sexual type matters. There were four counts: Count one relating to digital penetration when the complainant was four or five years; counts two and three related to digital penetration when the complainant was five years; count four related to an alleged indecent assault. I would mention, in passing, that the complainant gave evidence during the committal proceedings and was cross-examined at some length. Further, it appears that the complainant was also a relative of the applicant, at least by way of marriage. 9    Mr Miles, who appears on behalf of the applicant, has put a number of arguments to the court. The arguments, essentially, really come down to a particular argument which has been advanced in different forms and in different respects. That said he has not abandoned the written submissions that were relied upon before Judge Knight, nor the written submissions that have been advanced in support of this application. However, as I understand the particular submission that has been put quite strongly by Mr Miles, there is, in a situation such as this, an impossibility of the applicant receiving a fair trial, whatever directions may be given by the trial judge, if and when a trial takes place. 10    As I understand his proposition it is, firstly, that there is a danger of unfairness brought about by an inspired campaign of sexual behaviour of men which necessarily results in the inability of a fair trial whatever be the trial judge's direction at such a trial. Secondly, there is the impossibility of the applicant obtaining a fair trial because the applicant is facing a case where the complainant, who was, allegedly, four or five years at the time of the alleged events giving rise to the charge, and is really going to present herself to the court at an age of 16, or so, and that there is inherent unfairness in both or either situations. 11    These matters and other matters were put to Judge Knight. His Honour concluded, for detailed reasons, that he was unable to be satisfied that there was an unfairness present which would prevent a fair trial, according to law. 12    It seems to me that a careful consideration and reading of his Honour's judgment does not suggest that there is any error reflected in his Honour's approach to the discretionary aspect of the matter that he was required to consider. I see no error of law in respect of the discretion. I see nothing to suggest that the discretion miscarried. Permanent stays are discretionary and are reserved for the most exceptional circumstances. See Jago v District Court of New South Wales (1989) 168 CLR 23. 13 In my view, having regard to the circumstances of this case, there is no warrant for concluding that the stay should be granted or, alternatively, that circumstances exist which would warrant the granting of a conditional stay. In my view no case has been made out either for granting a permanent stay or, alternatively, for a conditional stay. In my view, his Honour's discretionary judgment did not miscarry. For these brief reasons I would consider that the appropriate order to make is that leave to appeal be refused. 14 FITZGERALD JA: I agree that leave to appeal should be refused. There is no basis for a conclusion that the applicant cannot receive a fair trial or that a judge before whom the applicant is to be tried will not do what is necessary to ensure a fair trial. 15 BARR J: I agree that leave to appeal should be refused . 16 FITZGERALD JA: Order of the court, leave to appeal is refused.

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