McIver v R

1. [1]

   GLEESON JA: My reasons for joining in the order made on 24 July 2019 accord with those of Johnson J.

2. [2]

   JOHNSON J: The Applicant, John McIver, sought leave to appeal under s.5F Criminal Appeal Act 1912 against an interlocutory judgment of the District Court on 9 July 2019 refusing an application for a permanent stay of criminal proceedings for sexual offences.

3. [3]

   The hearing of the application for leave to appeal proceeded in this Court on 24 July 2019. At the conclusion of the hearing, the Court refused the Applicant leave to appeal and indicated that reasons for this decision would be published at a later time.

4. [4]

   This judgment contains my reasons for joining in the order made by the Court on 24 July 2019.

The District Court Judgment

1. [5]

   By Notice of Motion filed in the District Court on 3 July 2019, the Applicant sought the following orders:

2. [6]

   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. [7]

   The Applicant was charged on three separate indictments with a total of 20 charges involving nine complainants. The 20 counts included the following:

4. [8]

   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. [9]

   The Applicant was charged with these offences on 2 November 2016.

6. [10]

   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. [11]

   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. [12]

   By Notice of Application for Leave to Appeal against an interlocutory judgment filed on 15 July 2019, the Applicant sought the following orders:

2. [13]

   In that Notice, the Applicant relied upon the following grounds:

Decision of the District Court Refusing the Stay Application

1. [14]

   The judgment of his Honour Judge Whitford SC referred (at [10]-[16]) to the bases of the application for a permanent stay which included:

2. [15]

   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]:-

3. [16]

   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. [17]

   His Honour then turned to the issue of delay (at [36]):

5. [18]

   After referring to authorities with respect to delay as a basis for a permanent stay of criminal proceedings, his Honour continued at [46]-[50]:

6. [19]

   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. [20]

   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. [21]

   Senior Counsel for the Applicant developed three submissions in support of the first ground of appeal.

3. [22]

   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. [23]

   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. [24]

   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. [25]

   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. [26]

   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. [27]

   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. [28]

   The Crown submitted that no House v The King error had been demonstrated in this case.

10. [29]

    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. [30]

    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. [31]

    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. [32]

    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. [33]

    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. [34]

   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. [35]

   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. [36]

   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. [37]

   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. [38]

   In Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20, the High Court said at 250 [35]:

6. [39]

   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]:

7. [40]

   In R v McCarthy (NSWCCA, 12 August 1994, BC94070870), Gleeson CJ (Carruthers and Hunter JJ agreed) observed (at page 11):

8. [41]

   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. [42]

   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. [43]

    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. [44]

    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. [45]

    No error has been demonstrated in this respect.

13. [46]

    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. [47]

    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. [48]

    No error has been demonstrated in this respect.

16. [49]

    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. [50]

    The trials of the Applicant would be conducted in accordance with law which includes s.165B Evidence Act 1995 which provides:

18. [51]

    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. [52]

    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. [53]

    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. [54]

    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. [55]

    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. [56]

    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. [57]

   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. [58]

   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.