McIver v R

The District Court Judgment

1. By Notice of Motion filed in the District Court on 3 July 2019, the Applicant sought the following orders: "(1) That each of the three trials … upon which the accused was arraigned on three indictments on 3 July 2019 be permanently stayed. (2) Further and in the alternative to (1) above, that in respect of each of the three indictments upon which he was arraigned on 3 July 2019, the accused by tried by judge alone. (3) That the determination of whether any count should be severed from other counts on any of the three indictments upon which the accused was arraigned on 3 July 2019 be deferred until the determination of arguments relating to tendency. (4) Any other orders as the court sees fit."
2. The Applicant came before his Honour Judge Whitford SC who refused the application for a permanent stay on 9 July 2019. His Honour also refused the application for trial by Judge alone. However, the Crown subsequently agreed to the first trial proceeding as a Judge-alone trial. Accordingly, the first trial of the Applicant proceeded as a Judge-alone trial: s.132(2) Criminal Procedure Act 1986.
3. The Applicant was charged on three separate indictments with a total of 20 charges involving nine complainants. The 20 counts included the following: 1. two counts of buggery; 2. seven counts of indecent assault; 3. six counts of assault occasioning actual bodily harm; and 4. five counts of assault.
4. The charges related to alleged offences committed by the Applicant against young persons who where residents at the Bexley Boys' Home between 1968 and 1974. The Applicant, who is now 80 years old, was a Salvation Army officer working at the Bexley Boys' Home in that period. Each of the complainants was aged between six and 14 years at the time of the alleged offences.
5. The Applicant was charged with these offences on 2 November 2016.
6. The charges were originally included on a single indictment. However, the Crown elected to proceed on three separate indictments, broadly grouping the charges according to the nature of the allegations. It was proposed that the trials would proceed as back-to-back trials.
7. The application for a permanent stay, though made in the District Court with respect to the first indictment, would also result in the second and third trials being stayed. The trial Judge had material relevant to all three indictments tendered before him and he considered them in coming to a decision to refuse the application for a permanent stay.

The Applicant's Grounds of Appeal

1. By Notice of Application for Leave to Appeal against an interlocutory judgment filed on 15 July 2019, the Applicant sought the following orders: "(1) An order granting leave to appeal. (2) An order setting aside the judgment or order of his Honour Judge Whitford SC on 9 July 2019 in which his Honour refused to grant a stay of proceedings. (3) An order granting a stay of the District Court proceedings against the applicant. (4) Such further or other orders as the Court thinks fit."
2. In that Notice, the Applicant relied upon the following grounds: "(1) That his Honour Judge Whitford SC erred in refusing to grant a stay of the proceedings. (2) His Honour erred in failing to give sufficient weight to the prejudice suffered by the applicant in his trial by reason of the following: (a) the passage of 45-51 years since the alleged offences; (b) the unavailability of witnesses by reason of death or other reasons; (c) the loss of records and documents which may have assisted the defence; (d) the impact of the public hearing and findings of the Royal Commission into Institutional Responses to Child Sexual Abuse; and (e) the frailty and age of the accused."

Decision of the District Court Refusing the Stay Application

1. The judgment of his Honour Judge Whitford SC referred (at [10]-[16]) to the bases of the application for a permanent stay which included: 1. the age and related health issues concerning the Applicant; 2. the length of time which had passed since the alleged incidents including the death of witnesses and loss of documentary evidence; 3. what were said to be weaknesses in the Crown case including the absence of corroboration concerning certain alleged offences; 4. the existence of prejudicial material with respect to the Applicant arising from the Royal Commission into Institutional Responses to Child Sexual Abuse; 5. the fact that a number of the complainants in the Applicant's trials had given evidence at that Royal Commission, with submissions being made concerning what were said to be potential difficulties arising from that process; 6. the degree of public interest and scrutiny concerning the trial, conviction and appeal of Cardinal George Pell which may give rise to adverse publicity prejudicial to the Applicant.
2. His Honour set out the principles to be applied on an application for a permanent stay. In the course of this recital, his Honour said at [28]:- "The exercise of the power, to a very large extent, involves an evaluative exercise. The question whether criminal proceedings should be permanently styed involves the weighing and balancing of a variety of factors and considerations. Amongst those factors and considerations are 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 (Jago; Walton v Gardiner (1993) 177 CLR 378 at 392-6). In Subramaniam v R (2004) 211 ALR 1, the High Court at [25]-[27] said that fairness or unfairness defies 'analytical definition' and involves an 'undesirably, but unavoidably, large content of essentially intuitive judgment'."
3. The primary Judge considered evidence and submissions concerning the health of the Applicant and observed that this did not provide any substantial support for the grant of a permanent stay (at [30]).
4. His Honour then turned to the issue of delay (at [36]): "It seems to me that the most powerful of the various bases relied upon by the accused for a permanent stay is the aspect of delay, and the various considerations consequent upon delay. Having said that, I do appreciate that the application does not rely upon the individual bases in isolation, but also upon their combined effect."
5. After referring to authorities with respect to delay as a basis for a permanent stay of criminal proceedings, his Honour continued at [46]-[50]: "46 Obviously, in the present trials, these alleged offences are very old and some important witnesses have died and the memories of the survivors are bound to have weakened over the years. Certainly, analogously with some of the authorities to which reference has been made, the accused will have inevitably lost forensic opportunities that may otherwise have been available, for example to explore the recollections of unavailable witnesses or to identify alibi defences by reference to records no longer available. In that respect he is prejudiced, but not necessarily, and certainly not sufficiently, unfairly. 47 As the Crown submitted, the complainants have been able, generally speaking, to recall, not only the offences, but many other details of conduct by the accused, other officers and boys from that period in their lives. Many appear from their statements to have very good memories of numerous facets of their day to day lives at quite young ages. Some weight must be given to the possibility that if one or other of the complainants is telling the truth (about an allegation) it is perhaps the sort of thing that might not be forgotten. 48 By contrast, some witnesses who are still available appear to provide some support for the accused's defence. 49 Whomever constitutes the tribunal of fact in these trials will be guided by the armoury of well-established and regularly utilised directions concerning the consequences of delay and, in particular, the forensic disadvantages that it brings. Those directions will to my mind sufficiently ameliorate the disadvantages and prejudice otherwise to the accused in these trials of the significant delays and the particular consequences to which it has given rise. I do not consider that delay, either in isolation or in combination with any or all of the other matters relied upon justifies a conclusion that there is exposed a fundamental defect that goes to the root of the trial and is of such a nature that relief against its consequences cannot be achieved in the conduct of the trial. 50 In my assessment, the third basis relied upon, the weakness of the Crown case, is inextricably tied to the considerations that arise by virtue of delay generally, although it possibly extends slightly further insofar as it is conceded that there is no corroboration for the allegations of any complainant. Like delay, I consider that any weakness of the Crown case is capable sufficiently of being exposed in these trials through appropriate directions to ameliorate its consequences otherwise. It is not a fundamental defect and does not contribute in combination with the other matters to a conclusion that the trials would be unfair in the necessary extent."
6. His Honour then considered the issue of media publicity before concluding that the application for a permanent stay should be dismissed.

Submissions on Application for Leave to Appeal

1. Mr Ozen SC, counsel for the Applicant, acknowledged that error must be demonstrated in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40.
2. Senior Counsel for the Applicant developed three submissions in support of the first ground of appeal.
3. Firstly, it was submitted that the primary Judge had identified incorrectly the public interest bearing upon the exercise of discretion and in identifying the actual matters applicable in the balancing exercise (at [28], at [15] above). It was submitted that his Honour had focused unduly upon the public interest in "the conviction of those guilty of crime" and not the public interest in the proceedings being conducted fairly in the interests of the administration of justice.
4. Secondly, it was submitted that his Honour allowed an extraneous or irrelevant matter to infect the exercise of discretion. It was submitted that the primary Judge had regard to aspects which concerned the apparent strength of the Crown case by reference to the memories of complainants (see [47], at [18] above). It was submitted that this was not a matter to be taken into account in the discretionary exercise on an application for a permanent stay.
5. Thirdly, it was submitted that his Honour did not have proper regard to possible directions to be given to reduce the suggested forensic disadvantages facing the Applicant because of delay (see [49], at [18] above). Whilst acknowledging the operation of s.165B Evidence Act 1995, Senior Counsel for the Applicant submitted that, in effect, that there were factors which could not be cured by any direction. In this respect, he referred to directions which could be given in the past in accordance with Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60.
6. It was submitted that there was no direction or other process available to a trial Judge which would overcome the prejudice to the Applicant in these trials.
7. The Applicant submitted that the factors summarised to in the second ground of appeal ought lead to a conclusion that it was not reasonably open to the primary Judge to refuse the Applicant's permanent stay application.
8. It was submitted for the Applicant that discretionary error had been established and that the prejudice to the Applicant because of factors including the passage of time, the death of witnesses and loss of documentary evidence was such that a permanent stay should be granted.
9. The Crown submitted that no House v The King error had been demonstrated in this case.
10. With respect to the Applicant's first argument (see [22] above), the Crown submitted that his Honour had correctly identified the relevant principles and had taken into account the public interest in a manner consistent with authority. The Crown submitted that the primary Judge drew no dichotomy between the need to maintain public confidence in the administration of justice (on the one hand) and the requirement of fairness to an accused person (on the other hand).
11. With respect to the second asserted error (see [23] above), the Crown submitted that the primary Judge had not taken into account an extraneous or irrelevant matter. Submissions had been made on behalf of the Applicant in the District Court on the stay application which referred to suggested weaknesses in the Crown case and contended that these suggested weaknesses might not be capable of being sufficiently addressed by appropriate directions from the trial Judge. The Crown responded to these submissions made on behalf of the Applicant. The Crown submitted that no error had been demonstrated in his Honour's approach to this issue.
12. With respect to the Applicant's third asserted error (see [24] above), the Crown submitted that there was no error in his Honour's indication that directions from the trial Judge would sufficiently alleviate areas of concern arising from delay. It was submitted that identification of appropriate directions would take place in the context of the trial itself. Insofar as the Applicant complained about potential directions, the Crown emphasised that s.165B Evidence Act 1995 had direct application in this area so that the trial Judge would have regard to that provision in seeking to ensure that the Applicant was tried according to law.
13. The Crown referred to the decision of the Victorian Court of Appeal in Shannon (A Pseudonym) v R [2019] VSCA 27 where emphasis was given to s.165B Evidence Act 2008 (Vic) in the course of dismissing an appeal from a refusal of a permanent stay of a criminal trial.
14. The Crown submitted that no error had been demonstrated in his Honour's approach to the determination of the permanent stay application in this case.

Decision

1. The refusal of an application for a permanent stay falls within the meaning of the words "interlocutory judgment or order" in s.5F: R v King (2003) 59 NSWLR 472 at 477; [2003] NSWCCA 399 at [22].
2. 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) 168 CLR 23 at 31; [1989] HCA 46. 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) 174 CLR 509 at 529; [1992] HCA 34.
3. 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) 177 CLR 378 at 395-396; [1993] HCA 77.
4. 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) 59 NSWLR 273 at 282; [2003] NSWCCA 394 at [55]-[56] (Spigelman CJ).
5. In Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20, the 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."
6. The fact that loss of primary evidence does not of necessity render a trial unfair was emphasised by the High Court in The Queen v Edwards (2009) 83 ALJR 717 at 722; [2009] HCA 20 at [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."
7. In R v McCarthy (NSWCCA, 12 August 1994, BC94070870), Gleeson CJ (Carruthers and Hunter JJ agreed) 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)."
8. This statement has been applied by this Court: R v Hatfield [1999] NSWCCA 340 at [17]; R v Pike [2000] NSWCCA 347 at [28].
9. Whether to grant or refuse a permanent stay is a discretionary decision, reviewable only on principles stated in House v The King. For an appeal to succeed, it is necessary for the Applicant to identify some error, patent or latent, in the decision.
10. The Applicant's first submission contends that the primary Judge fell into error in his approach to "the conviction of those guilty of crime" in the part of the judgment set out at [15] above.
11. His Honour's reference to that aspect is consistent with the statements of principle set out (at [36] above) with respect to an application for the exceptional remedy of a permanent stay of a criminal trial. I do not detect any error in his Honour's approach to this issue which involved an assessment as to whether there was unfairness to the Applicant which ought lead to the grant of a permanent stay.
12. No error has been demonstrated in this respect.
13. The Applicant's second alleged error arises from [47] of the primary judgment set out above (at [18]). This submission was directed to his Honour's statement that "Many appear from their statements to have very good memories of numerous facets of their day to day lives at quite young ages". It is necessary to keep in mind that his Honour was considering an argument as to suggested prejudice from delay where counsel for the Applicant in the District Court had addressed on areas of suggested weakness in the Crown case. So much is clear from [50] of the primary judgment where his Honour noted a defence submission by reference to the suggested weakness of the Crown case.
14. The observation made by the primary Judge was not an extraneous or irrelevant one. His Honour made that observation in the course of considering one of the limbs upon which a permanent stay was sought by the Applicant.
15. No error has been demonstrated in this respect.
16. The third error submitted for the Applicant relates to his Honour's statements concerning directions in [49] of the primary judgment (see [18] above). I detect no error on the part of the primary Judge in this part of his Honour's decision. It was not necessary for his Honour to determine, in the context of a permanent stay application, the directions which would be given at a trial of the Applicant. There were to be three trials involving different issues. It was sufficient for his Honour to address the issue of directions in the general way that he did.
17. The trials of the Applicant would be conducted in accordance with law which includes s.165B Evidence Act 1995 which provides: "165B Delay in prosecution (1) This section applies in a criminal proceeding in which there is a jury. (2) If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay. (5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury. (6) For the purposes of this section: (a) delay includes delay between the alleged offence and its being reported, and (b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay. (7) For the purposes of this section, the factors that may be regarded as establishing a significant forensic disadvantage include, but are not limited to, the following: (a) the fact that any potential witnesses have died or are not able to be located, (b) the fact that any potential evidence has been lost or is otherwise unavailable."
18. Clearly, any directions to be given under s.165B would be identified when an application was made under s.165B(2) and the Court was satisfied that those directions were appropriate in the circumstances of the trial: TO v The Queen (2017) 265 A Crim R 191 at 194-195; [2017] NSWCCA 12 at [167].
19. Section 165B has been in force in New South Wales since 2007. Insofar as submissions made for the Applicant complain that a trial Judge would be inhibited in directions which could be given in accordance with what was said in Longman v The Queen, it should be observed that s.165B was introduced to "replace the existing common law on Longman warnings so as to limit the circumstances in which they are given and clarify their scope", (Agreement in Principle Speech, Hansard, Legislative Assembly, 17 October 2007). The Victorian Court of Appeal has noted that s.165B Evidence Act 2008 (Vic) replaces the principles in Longman v The Queen in Hermanus (a Pseudonym) v R (2015) 44 VR 335 at 343-344; [2015] VSCA 2 at [42]-[44] and Shannon (A Pseudonym) v R at [23].
20. Senior Counsel for the Applicant made clear that he was not arguing that the legislative change embodied in s.165B Evidence Act 1995 created unfairness. Rather, he relied upon statements by courts before 2007 concerning protective factors or remedies able to cure unfairness (T20, 24 July 2019).
21. Section 165B Evidence Act 1995 constitutes part of the law in this State. The Applicant is entitled to a fair trial according to law which includes s.165B as it may apply to the Applicant's case. I detect no error in the approach of the primary Judge on the question of directions which may operate in the Applicant's trial. No error has been demonstrated in this respect.
22. Insofar as the Applicant submitted, in support of the second ground of appeal, that it was not reasonably open to the primary Judge to refuse the application for a permanent stay in all the circumstances of the case, I do not accept that submission. His Honour had regard to the various matters raised on the application including an overall cumulative assessment of them for the purpose of determining the application. It was open to his Honour to refuse the permanent stay application in the circumstances of the case.
23. The Applicant has failed to demonstrate House v The King error as asserted in his grounds of appeal, or in the extended way in which the grounds were argued before this Court.

Conclusion

1. It was for these reasons that I joined in the order made by the Court at the conclusion of the hearing on 24 July 2019 refusing the Applicant leave to appeal under s.5F Criminal Appeal Act 1912.
2. PRICE J: For the reasons enunciated by Johnson J, I joined in the order made on 24 July 2019 refusing the Applicant leave to appeal.

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. Decision last updated: 10 December 2019