Webb v R; R v Webb [2012] NSWCCA 216

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Webb v R; R v Webb [2012] NSWCCA 216 Hearing dates: 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 1995 Cases 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