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
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
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…
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.
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Details
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.