Court of Criminal Appeal
New South Wales
Case Title: Webb v R; R v Webb Medium Neutral Citation: [2012] NSWCCA 216 Hearing Date(s): 21 September 2012 Decision Date: 12 October 2012 Before: Macfarlan JA at [1]
Johnson J at [2]
Beech-Jones J at [108]Decision: On 21 September 2012, the Court made the following orders:
(a) an order dismissing Mr Webb's appeal;
(b) an order allowing the Crown appeal;
(c) an order setting aside the evidentiary ruling contained in [67] of the decision of his Honour Judge Woods QC of 27 July 2012;
(d) in relation to the Crown appeal, an order granting Mr Webb a certificate under the Suitors' Fund Act 1951 if he is qualified.
Catchwords: CRIMINAL LAW - interlocutory appeals - appeal by accused under s.5F(3) Criminal Appeal Act 1912 against refusal of a permanent stay - appeal by Crown under s.5F(3A) against evidentiary ruling excluding certain evidence - aggravated sexual assault and car stealing charges arising from incident in 1991 - 70-year old complainant - cold case investigation in 2011 after DNA match made linking accused to offences - videotaped interview with complainant (then 90-years' old) in January 2011 - accused charged in March 2011 - complainant dies in April 2011 - ruling by trial Judge that complainant's account of incident given in 1991 and 2011 was admissible under s.65(2)(c) Evidence Act 1995 - application for permanent stay based upon inability of Crown to call complainant at trial and loss and destruction of certain physical and documentary evidence - Crown case dependent upon DNA evidence - accused not able to demonstrate any realistic prejudice arising from inability to cross-examine complainant and loss and destruction of evidence - no error demonstrated in refusal to grant permanent stay - appeal by accused dismissed - ruling by trial judge excluding evidence concerning one count under ss.135 or 137 Evidence Act 1995 - two answers in complainant's 2011 interview held to render evidence on that count misleading or confusing - error demonstrated - two answers to be considered in light of all evidence on that count - factual issue for a properly instructed jury - evidence should not have been excluded under ss.135 or 137 - Crown appeal allowed Legislation Cited: Criminal Appeal Act 1912
Suitors' Fund Act 1951
Crimes Act 1900
Evidence Act 1995Cases Cited: House v The King [1936] HCA 40; 55 CLR 499
Banditt v The Queen [2005] HCA 80; 224 CLR 262
Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23
Williams v Spautz [1992] HCA 34; 174 CLR 509
Walton v Gardiner [1993] HCA 77; 177 CLR 378
R v WRC [2003] NSWCCA 394; 59 NSWLR 273
Dupas v The Queen [2010] HCA 20; 241 CLR 237
The Queen v Edwards [2009] HCA 20; 83 ALJR 717
R v McCarthy (NSWCCA, 12 August 1994, BC94070870)
R v Hatfield [1999] NSWCCA 340
R v Pike [2000] NSWCCA 347
R v Rose (No. 1) [2001] NSWSC…
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Details
- AGLC
- Webb v The Queen; R v Webb [2012] NSWCCA 216
- Case
- [2012] NSWCCA 216
- Decision Date
CaseChat Overview and Summary
The case of Webb v The Queen involved the appellant, who was charged with aggravated sexual assault and car stealing offences arising from an incident in 1991. The 70-year-old complainant passed away in April 2011, shortly after giving a videotaped interview. The accused was charged in March 2011, following a DNA match linking him to the offences. The trial judge admitted the complainant's account under s.65(2)(c) of the Evidence Act 1995, and the Crown sought a permanent stay based on the complainant's death and the loss of physical and documentary evidence. The accused appealed the refusal of a permanent stay, while the Crown appealed the evidentiary ruling excluding certain evidence.
The primary legal issues were whether the refusal to grant a permanent stay was an abuse of process and if the exclusion of certain evidence was erroneous. The court considered the principles surrounding the abuse of process, the exceptional circumstances required for a permanent stay, and the impact of the loss of evidence on the fairness of the trial. The court also evaluated the admissibility of the complainant's account under s.65(2)(c) of the Evidence Act 1995, and the relevance of the excluded evidence on one count.
The court found that the refusal to grant a permanent stay was not an abuse of process, as the loss of the complainant and evidence did not render the trial unfair. The court emphasised that the unfair consequences of a defect in a trial could not be relieved against by the trial judge during the course of the trial. The court also held that the exclusion of evidence on one count was erroneous, as the two answers given by the complainant should be considered in light of all the evidence on that count. The factual issue of whether the accused committed the offence should be left to a properly instructed jury, and the evidence should not have been excluded under ss.135 or 137 of the Evidence Act 1995.
The appeal by the accused was dismissed, and the Crown's appeal was allowed. The court held that the exclusion of evidence on one count was erroneous, and the trial judge should have considered the two answers in light of all the evidence on that count. The factual issue of whether the accused committed the offence should be left to a properly instructed jury, and the evidence should not have been excluded under ss.135 or 137 of the Evidence Act 1995.
The primary legal issues were whether the refusal to grant a permanent stay was an abuse of process and if the exclusion of certain evidence was erroneous. The court considered the principles surrounding the abuse of process, the exceptional circumstances required for a permanent stay, and the impact of the loss of evidence on the fairness of the trial. The court also evaluated the admissibility of the complainant's account under s.65(2)(c) of the Evidence Act 1995, and the relevance of the excluded evidence on one count.
The court found that the refusal to grant a permanent stay was not an abuse of process, as the loss of the complainant and evidence did not render the trial unfair. The court emphasised that the unfair consequences of a defect in a trial could not be relieved against by the trial judge during the course of the trial. The court also held that the exclusion of evidence on one count was erroneous, as the two answers given by the complainant should be considered in light of all the evidence on that count. The factual issue of whether the accused committed the offence should be left to a properly instructed jury, and the evidence should not have been excluded under ss.135 or 137 of the Evidence Act 1995.
The appeal by the accused was dismissed, and the Crown's appeal was allowed. The court held that the exclusion of evidence on one count was erroneous, and the trial judge should have considered the two answers in light of all the evidence on that count. The factual issue of whether the accused committed the offence should be left to a properly instructed jury, and the evidence should not have been excluded under ss.135 or 137 of the Evidence Act 1995.
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
The Crown submitted that no factual or legal error had been demonstrated in his Honour's decision refusing the permanent stay. The Court was taken to a number of authorities which supported the approach taken by the primary Judge on the stay application. Decision on Mr Webb's Appeal The principles concerning abuse of process, to be applied on an appeal such as this, are not in doubt. It has been emphasised that the power to stay permanently a criminal prosecution will be used only in most exceptional circumstances: Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23 at 31. The onus of satisfying the Court that there is an abuse of process lies upon the party alleging it, and the onus is a heavy one: Williams v Spautz [1992] HCA 34; 174 CLR 509 at 529. The question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations, including the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime and the need to maintain public confidence in the administration of justice: Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 395-396. Because a permanent stay of criminal proceedings is a wholly exceptional step, it has been said that it should be ordered only in an extreme case: R v WRC [2003] NSWCCA 394; 59 NSWLR 273 at 282 [55]-[56] (Spigelman CJ). In Dupas v The Queen [2010] HCA 20; 241 CLR 237, the Full High Court said at 250 [35]:"Characterising a case as extreme or singular is to recognise the rarity of a situation in which the unfair consequences of an apprehended defect in a trial cannot be relieved against by the trial judge during the course of a trial. There is no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered. In seeking to apply the relevant principle in Glennon, the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences." The fact that loss of primary evidence does not of necessity render a trial unfair was emphasised by the Full High Court in The Queen v Edwards [2009] HCA 20; 83 ALJR 717 at 722 [31]:"Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair." In R v McCarthy (NSWCCA, 12 August 1994, BC94070870), Gleeson CJ observed (at page 11):"Time and time again it happens in criminal proceedings that for any one of a variety of reasons witnesses who may be regarded as important by one side or the other die, or become ill, or lose their memory, or lose documents. If the result of that were that nobody could obtain a fair trial, and the proceedings had to be permanently stayed, it would go a long way towards solving the problems of delay in the criminal lists in this State. However, the position is that it is well recognised that an occurrence of that kind does not of itself mean that a person cannot obtain a fair trial or that proceedings need to be stayed. In this connection I refer to what was said in R v Adler (unreported CCA, 11 June 1992) and R v Goldberg (unreported CCA, 23 February 1993)."
Ratio Decidendi
Legal Principle Established
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