Reported Decision : (2002) 132 A Crim R 551 New South Wales Court of Criminal Appeal CITATION : R v H [2002] NSWCCA 355 FILE NUMBER(S) : CCA 60666/01 HEARING DATE(S) : 20 May 2002 JUDGMENT DATE : 28 August 2002 PARTIES : R (NSW) H (Applicant) JUDGMENT OF : Ipp AJA at 1; Dunford J at 2; Bergin J at 36 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/51/0134 LOWER COURT JUDICIAL Morgan DCJ OFFICER : COUNSEL : RA Hulme (Crown) P Segal (Applicant) SOLICITORS : SE O'Connor (Crown) Peter Ash & Associates (Applicant) CATCHWORDS : CRIMINAL LAW - sexual offences - interlocutory appeal - application for permanent stay - abuse of process - delay. Criminal Appeal Act 1912, s 5F LEGISLATION CITED : Evidence Act 1995, ss 135, 164, 165 Crimes Act 1900, ss 78H, 79, 81A R v Kennedy (NSWCCA - unreported - 9 December 1998) Longman v The Queen (1989) 168 CLR 79 Crampton v The Queen [2000] 176 ALR 369 Doggett v The Queen [2001] HCA 46, 182 ALR 1 R v BWT [2002] NSWCCA 60 CASES CITED: R v Geoghegan [1999] NSWCCA 20 R v PH (NSWCCA - unreported - 4 March 1994) R v Littler [2001] NSWCCA 173 Jago v District Court of NSW (1989) 168 CLR 23 Walton v Gardiner (1993) 177 CLR 378 R v Allen (1848) 1 Den CC 364 DECISION : Time for making application extended, leave to appeal granted, appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60666/01 IPP AJA DUNFORD J BERGIN J Wednesday, 28 AUGUST 2002 R v H Judgment 1 Ipp AJA: I agree with Dunford J. 2 Dunford J: This is an application by H for an extension of time for leave to appeal pursuant to s 5F, Criminal Appeal Act 1912, against the interlocutory order of Morgan DCJ dismissing an application for a permanent stay of proceedings against him on an indictment for buggery contrary to s 79 of the Crimes Act 1900 as it stood in 1970. The Crown has no objection to the application for an extension of time. 3 In December 2000 the applicant was to stand trial in the District Court at Lismore on three counts, the present count of buggery concerning his son, and two counts (one of indecent assault and one of assault with intent to carnally know) concerning his daughter. He entered a plea of guilty to one count concerning his daughter and was placed on a four-year bond by Judge Ducker. 4 He sought that the remaining charges be no billed. The remaining charge in respect of the daughter was no billed, but a bill was found for buggery concerning the son. The applicant then applied for a permanent stay which was refused on 6 July 2001, although her Honour did suggest that the matter might be looked at again by the Office of the Director of Public Prosecutions. This prompted a further application to the Director which was also refused, and hence this application for leave to appeal. 5 The material before her Honour showed that the original indictment against the applicant included all three counts alleged against him, but on the morning of the date set for trial (4 December 2000) the Crown Prosecutor indicated to the applicant's counsel that the Crown had decided to split the indictment and to proceed firstly with the two counts concerning the daughter, and then separately with the buggery count in respect of the son. Discussions then took place between counsel during which it was indicated that the applicant was prepared to plead guilty to one charge of indecent assault upon his daughter, but that he strenuously denied the other charge in respect of the daughter and the allegations made by his son. The Crown Prosecutor then spoke with the daughter who expressed a wish for the matter to be dealt with on the basis of a guilty plea to one count of indecent assault and she was told that the Crown Prosecutor would then recommend that there be no further proceedings on the outstanding charge relating to her. 6 Further discussions took place between the Crown Prosecutor and the applicant's counsel in which the Crown Prosector said that in his opinion there was no real prospect of a conviction on the buggery charge, and that he intended making a recommendation to the Director that there be no further proceedings in respect of it. Defence counsel (who was not counsel who appeared for the applicant on the stay application or on the appeal) said in his affidavit on the stay application that he pressed the attractiveness of the offer to the applicant, and said that, although he cannot remember the precise words used, it was his usual practice to advise clients in such a situation that such a recommendation (of no further proceedings) was in the normal course of events accepted by the Director, and that in circumstances such as these, where the Crown Prosecutor had a strong opinion in favour of a no bill, it would normally follow that such recommendation would be followed. 7 In his affidavit the applicant swore that following discussions, his counsel informed him that the Crown Prosecutor had agreed to withdraw the indictment of carnal knowledge in respect of his daughter and the indictment of "sodomy" in respect of his son if he pleaded guilty to the indecent assault of his daughter. He also said that following his agreement to plead guilty to the indecent assault charge his counsel told him he had been told by the Crown Prosecutor that he had spoken to the son who had said that he was happy to have the "sodomy" charge withdrawn, but the Crown Prosecutor denied this statement and said that he did not speak to the son until after the applicant had pleaded guilty to the charge of indecent assault on his daughter, although he said that at that stage he told the complainant of his view that there was little, if any, chance of conviction and that he would be recommending to the Director that there be no further proceedings, although he (the complainant) was at liberty to make whatever representations he thought necessary to the Director. 8 Prior to pleading guilty to the charge of indecent assault in respect of the daughter, the applicant signed a document which was prepared by and witnessed by his counsel instructing his legal advisors that he wished to enter a plea of guilty, which read in part as follows: " … an offer by the Crown to present only one count of Commit Act of Indecency with no supporting surrounding incidents." 9 Although it does not specifically say so, that document appears to relate only to the charges concerning the daughter, and it contains no express reference to any charge concerning the son. 10 At first instance the applicant submitted that the continuation of the prosecution for buggery constituted an abuse of process for two reasons, namely 1) the applicant had only pleaded guilty to the one count of indecent assault in respect of his daughter because he believed that if he did so the charge of buggery in respect of his son would not be proceeded with, and 2) because of the delay, the accused could not receive a fair trial. 11 The grounds of appeal to this Court were that the learned primary judge erred in not holding that there was an abuse of process in that she: (a) Lent insufficient weight to the circumstances attending the finding of a bill against the applicant subsequent to his plea of guilty to one count concerning the daughter in December 2000, (b) Gave insufficient weight in determining the forensic and associated disadvantages of the applicant by reason of delay, (c) Did not take into account quantum of public interest in prosecuting a 1970 allegation of buggery, and (d) Did not adequately assess the unfair prejudice to the applicant in relation to the proposed evidence of asserted facts surrounding the allegation of buggery. 12 The two grounds were substantially the same as those relied on at first instance, but it was conceded that grounds (c) and (d) were not argued before Morgan DCJ. 13 As to the principles on which this Court should approach appeals against the refusal of a permanent stay, I repeat what I said in R v Kennedy (NSWCCA – unreported – 9 December 1998) at p 5: "As the power to grant a stay is discretionary, the ordinary principles relating to appeals in respect of the exercise of discretion apply; see House v The King (1936) 55 CLR 499 at 504 to 5. In R v Alexandroaia (1994) 81 A Crim R 286 at 290, this Court said in relation to appeals on discretionary matters: "There is a strong presumption in favour of the correctness of the decision, but that presumption will be overcome where it is shown that the judge has acted on some wrong principle, or has given weight to extraneous or irrelevant matters, or has failed to give weight or sufficient weight to relevant considerations, or has made a mistake as to the facts. Even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise that discretion." The right to a fair trial is basic to our criminal justice system and to ensure that innocent people are not convicted of criminal offences, a stay of proceedings may be granted to prevent an unfair trial: Jago v District Court of New South Wales (1989) 168 CLR 23. But that right must be balanced against the right of the community to expect that persons charged with serious criminal offences are brought to trial and the grant of a stay of proceedings is discretionary and the circumstances will usually have to be extreme for such relief to be given. The onus lies on the applicant to a stay to demonstrate that the disadvantage or prejudice which he would suffer by refusal of a stay is, in a relevant sense, unacceptable to the extent that the trial would be unfair: R v Helmling (CCA - 11 November 1993) at p 4 and authorities there cited. See also R v Tolmie (CCA - 7 December 1994)." 14 As to the first matter relied on, that the applicant believed that if he pleaded guilty to a single charge of indecent assault in respect of his daughter, the charge of buggery in respect of the son would not be proceeded with, her Honour took this into account and gave weight to the evidence including the fact that his then counsel swore in his affidavit that it was his normal practice to advise his client that a submission from a Crown Prosecutor that a matter be no billed is in the normal course of events accepted by the Director of Public Prosecution, and in circumstances such as the present where the Crown had a strong opinion in favour of a no bill, it would normally follow that a no bill would be offered. 15 Her Honour was of the opinion that such advice was incorrect, but pointed out that it was not induced by any representation on the part of the Crown or anyone acting on its behalf, and that accordingly there was no abuse of process in the Crown proceeding with the application. I can see no error in her Honour's reasoning in this regard. 16 The second matter alleged to give rise to an abuse of process arises out of the delay and the consequences thereof. The offence is alleged to have been committed in 1970 at a time when the complainant was aged 5 or 6, some 32 years ago or 27-28 years before he went to police and made a statement in 1998. This was also some 20 years after the applicant left the family home and 13 years after the applicant reached the age of majority (18). 17 Not only is there delay as such, but the vagueness of the allegation as to date, place, type of truck, names of his father's workmates or any surrounding detail which the applicant could use to identity the occasion of the alleged offence or call evidence to contradict the evidence of the complaint are denied to him. There was in fact evidence that the applicant's present solicitor had made enquiries in relation to such matters and had been unable to locate any relevant information. 18 These are the very type of considerations which the High Court in Longman v The Queen (1989) 168 CLR 79 has said require a careful warning and direction by trial judge, but they do not give rise to an abuse of process or justify a permanent stay. See also Crampton v The Queen [2000] 176 ALR 369, Doggett v The Queen [2001] HCA 46, 182 ALR 1, R v BWT [2002] NSWCCA 60, R v Geoghegan [1999] NSWCCA 20 at [3], R v PH (NSWCCA – 4 March 1994). 19 R v Littler [2001] NSWCCA 173, 120 A Crim R 512 appears to be the only case where a stay has been granted on this ground, but there the applicant's problems were compounded by poor physical and mental health and a loss of memory supported by a number of specialist medical reports. 20 In oral submissions it was suggested that the prosecution was unfair because in 1970 the evidence of a 6 year old boy may not have been admitted and if admitted there would have been a warning that it would be dangerous to convict in absence of corroboration, whereas that of a 32 year old in 2002 is evidence in ordinary course of events and corroboration is not required – s 164. However, s 165 requires a special warning in respect of evidence which may be unreliable and, although it is a matter for the trial judge, it seems to me that it would be appropriate to give a warning under s 165 regarding a witness who purports to be relating events which he claims occurred over 30 years previously when he was a 6 year old child. 21 A further complaint was made in this regard to the effect that in this case because of the requirements of Longman and such cases, as well as s 165 of the Evidence Act 1995, the trial judge would be required to give so many warnings that not only is there the danger of error in the trial judge's warnings, but the sheer multitude of them may confuse the jury and also cause them to be less effective. A large number of warnings are common in cases such as these "delayed sexual cases", which unfortunately are not uncommon, but their necessity has never been regarded as constituting an abuse of process, or giving rise to a trial which is unfair. 22 It is, in my opinion, also relevant to bear in mind that whatever complaint may be made in the present case, it cannot be blamed on the Crown, the police or other prosecuting authority. The complainant only made a statement to police on 9 October 1998, and thereafter the matter was prosecuted promptly. 23 The delay was that of the complainant himself who did not report it until then, and it was said that there was no explanation for such delay. The relevance of this may be a matter of some debate as the Crown prosecutes, not on behalf only of the complainant, but on behalf of the community as a whole which has an interest in those who are alleged to have committed offences being tried according to law, notwithstanding what may be the attitude of the victim; but in any event we have since been furnished by consent with a transcript of the evidence of the complainant at committal (which it appears was not before her Honour at first instance, although it may have been part of the Registry file, which was referred to), and in that evidence the complainant at pp 37 and 42 purported to explain why he did not report it earlier. 24 If accepted, these explanations may satisfy the tribunal of fact as valid reasons for the complainant not reporting the matter earlier, but these are matters for the trial, and do not assist the applicant on this application. That evidence also explains how it was that the complainant made a statement to the police about this matter the day after his sister made a statement relating to the applicant's alleged sexual abuse of her, and the events leading up to him going to the police. 25 In any event the question of delay was considered by her Honour. The decision to prosecute the alleged offenders is a matter for the executive government, and the courts should not interfere except where such prosecution will result in a trial which is unfair: Jago v District Court of NSW (1989) 168 CLR 23, or the prosecution will inevitably fail: Walton v Gardiner (1993) 177 CLR 378 at 393, 411. 26 Thus the two grounds on which the applicant relied before her Honour were both considered by her, and I can see no error in her Honour's approach. No irrelevant matters were taken into account or relevant matters omitted, nor was the ultimate result unreasonable. 27 Two further matters were relied on before us which had not been the subject of submissions at first instance. I refer to what I said earlier in this judgment concerning the nature of an appeal from a discretionary judgment, as this is, and except possibly in the most glaring obvious case, I fail to see how it could be asserted that the primary judge when exercising her discretion failed to take into account or have sufficient proper regard to a matter which was not relied on before her. In any event, I am satisfied there is no substance in either of the additional matters raised for the first time on appeal. 28 The first of the fresh submissions is that her Honour failed to take into account that there is no public interest at this time in prosecuting a 31 year old allegation of buggery because, it was submitted, unlike the present s 78H (enacted in 1984) which is directed to the sexual abuse of children, the common law offence of buggery (for which the penalty was prescribed by the former s 79) was directed at any form of homosexual intercourse, including that between consenting adults, in an age when any form of homosexual conduct was unacceptable in our community. 29 This last proposition may be accepted and it may be that there would be little or no public interest in a prosecution at the present time for an alleged act of buggery committed 31 years ago between consenting adults; but the complainant was not an adult, s 78H (homosexual intercourse with a child under the age of 10) had not been enacted, and in cases of buggery it was irrelevant who penetrated whom: R v Allen (1848) 1 Den CC 364. 30 Notwithstanding changes in public attitudes to homosexual conduct between consenting adults, no one would suggest that homosexual intercourse by an alleged offender with a 5 or 6 year old child, particularly with the alleged offender's own child, should be ignored; and having regard to the law at the time, buggery is the appropriate charge to prosecute. It was the only offence which at that time dealt with anal penetration by a male penis and it carried a maximum penalty of 14 years. Section 81A (indecency with another male) was clearly inappropriate for this allegation as it carried a maximum penalty of only 2 years. 31 Further it was submitted that the primary judge did not adequately assess the unfair prejudice to the applicant in relation to proposed evidence of asserted facts surrounding the allegation of buggery. In the complainant's statement to police he alleges a number of other acts of gross indecency by the applicant leading up to and following the act of penetration alleged to constitute the offence. The statement also alleges a number of other acts of indecency including acts of oral sex, and other sexual acts involving the applicant and his daughter (the complainant's sister). 32 It was submitted that the applicant would be substantially prejudiced by such evidence, but with the exception of the evidence relating to the applicant's alleged conduct involving the daughter which on the material presently before us, appears to be clearly irrelevant, such evidence is commonly admitted in cases involving child sexual abuse as transactional and/or relationship evidence. Whether it should be excluded pursuant to s 135, of the Evidence Act is properly a matter for the trial judge. 33 Finally it was submitted that, even if none of the matters discussed of themselves amounted to an abuse of process, their combined overall effect would result in a trial which would be unfair to the applicant and hence would amount to an abuse of process. I am not persuaded that this is so and can see no error in her Honour's ultimate conclusion. 34 After judgement had been reserved in this matter a further affidavit was received from the applicant sworn 1 July 2002. This was filed without any leave being reserved to do so, and before taking its contents into account it would be necessary to have regard to the principles relating to fresh evidence on appeals, and for the Crown to be given an opportunity to respond and to cross-examine the applicant, who did not give evidence at first instance. Notwithstanding these considerations I have in any event read the applicant's affidavit. In so far as it contains material that would otherwise be relevant or admissible, it is substantially a repetition of material already submitted to Morgan DCJ and to this Court by his counsel at the hearing of his application. 35 For these reasons I am not satisfied that her Honour erred in the exercise of her discretion in refusing the applicant's application. I would therefore extend the time for making the application and grant leave to appeal, but would dismiss the appeal. 36 Bergin J: I agree with Dunford J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.