TS v R [2014] NSWCCA 174

Court of Criminal Appeal Supreme Court New South Wales 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