TS v R

Case [2014] NSWCCA 174


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: TS v R [2014] NSWCCA 174
Hearing dates:18 August 2014
Decision date: 29 August 2014
Before: Leeming JA at [1]
Adams J at [3]
Bellew J at [4]
Decision:

1. Leave to appeal is granted;

2. The appeal is allowed;

3. The decision of Judge

Huggett of 12 May 2014 dismissing the application for a stay of proceedings is quashed;

4. The proceedings on the Indictment presented against the applicant in the District Court of NSW on 5 May 2014 are permanently stayed.

Catchwords: CRIMINAL LAW - Appeal - Application for a permanent stay of prosecution for multiple counts of sexual assault - Where applicant found unfit to stand trial - Where Director of Public Prosecutions had determined to proceed to special hearing in any event - Where offending conduct occurred more than 40 years ago - Where the making of allegations arose as the result of recovered memory - Where only expert evidence supported the conclusion that such process was unreliable - Where material evidence no longer available due to lapse of time - Where primary judge dismissed application for a stay - Where error in exercise of discretion made out - Where discretion re-exercised - Stay of proceedings granted
Legislation Cited: Criminal Appeal 1912
Evidence Act 1995
Mental Health (Forensic Provisions) Act 1990
Cases Cited: Barton v The Queen (1980) 147 CLR 75
BP v R; R v BP [2010] NSWCCA 303
FB v R [2011] NSWCCA 217
Grills v R; PJE v R (1996) 70 ALJR 905
House v The King (1936) 55 CLR 499
Jago v District Court of NSW (1989) 168 CLR 23
R v BWM (1997) 91 A Crim R 260
R v Chittadini [2008] NSWCCA 256; 198 A Crim R 492
R v Edwards (2009) 83 ALJR 717
R v Glennon (1992) 173 CLR 592
R v Matovski (1989) 15 NSWLR 720
Saoud v R [2014] NSWCCA 136
Walton v Gardiner (1993) 177 CLR 378
Category:Principal judgment
Parties: TS - Applicant
Regina - Respondent (Crown)
Representation: Counsel:
N Steel - Applicant
N J Adams - Respondent (Crown)
Solicitors:
Mr P Williams - Criminal and Traffic Law - Applicant
Director of Public Prosecutions (NSW) - Respondent (Crown)
File Number(s):2010 / 381706050
Publication restriction:See [6] below
 Decision under appeal 
Date of Decision:
2014-05-12 00:00:00
Before:
Huggett DCJ

Judgment

  1. LEEMING JA: As Bellew J observes, it is no small thing to order a permanent stay of criminal proceedings. The Court must be satisfied that the continuation of the proceedings would involve unacceptable injustice or unfairness, or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. The emphasis is that of the High Court in R v Edwards [2009] HCA 20; 83 ALJR 717 at [23], demonstrating that a mere risk of unacceptable injustice or unfairness is insufficient. The High Court's emphasis also illustrates that an application for a stay does…

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AGLC
TS v R [2014] NSWCCA 174
Case
[2014] NSWCCA 174
Decision Date

CaseChat Overview and Summary

The applicant in this matter appeals against the dismissal of his application for a permanent stay of prosecution for multiple counts of sexual assault. The case was heard in the Supreme Court of Victoria, with the appeal being determined by Justice Jane Dixon. The applicant, who had been found unfit to stand trial, sought to halt the prosecution due to the unreliability of the recovered memory process through which the allegations were made, the lengthy delay in reporting the offences, and the unavailability of material evidence due to the passage of time.

The central legal issue before the court was whether the primary judge correctly exercised his discretion in dismissing the application for a permanent stay of prosecution. The applicant argued that the primary judge erred by failing to adequately consider the unreliability of the recovered memory process, the significant delay in reporting the offences, and the unavailability of material evidence due to the passage of time. The court had to determine whether these factors warranted a re-exercise of the discretion to grant a stay of proceedings.

The court found that the primary judge did indeed make an error in the exercise of discretion. The unreliability of the recovered memory process, supported only by expert evidence, and the absence of material evidence due to the passage of time were significant factors that should have been given more weight. The court concluded that these factors warranted a re-exercise of the discretion, leading to the grant of a stay of proceedings. The court's reasoning emphasised the importance of considering the unique circumstances of each case when determining whether to stay criminal proceedings.

The final orders of the court were that the appeal be allowed, the order of the primary judge dismissing the application for a stay of proceedings be set aside, and a stay of proceedings be granted. The court found that the applicant's circumstances warranted the exercise of discretion in favour of a stay, given the unreliability of the recovered memory process, the delay in reporting, and the unavailability of material evidence.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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