R v Richards [2020] NSWDC 763

R v Richards [2020] NSWDC 763

The application for a permanent stay was refused because, although the delay was very substantial, it was reasonably explained by the complainants coming forward only recently; the accused did not particularise lost evidence; the case was relevantly similar to McIver; any forensic disadvantage could be ameliorated by trial directions under s 165B of the Evidence Act 1995 (NSW); there was no prosecutorial misuse in sequential charging; the accused's own medical evidence showed he was fit to plead and capable of instructing despite mild cognitive decline; and the disclosure complaint could be pursued by coercive processes. The accused did not discharge the heavy onus of showing that he...

Jurisdiction
Australia
Judgment Date
16 December 2020
Procedural Posture
Criminal Proceeding for Historical Sexual Offences / Accused's Notice of Motion Dated 18 November 2020 Seeking a Permanent Stay of Proceedings Before Plea
Outcome
Application for a permanent stay refused.
Legal Topics
['permanent Stay' 'abuse of Process' 'historical Sexual Offences' 'delay' 'oppression' 'fitness to Stand Trial' 'forensic Disadvantage' 'disclosure']
['criminal Law' 'criminal Procedure' 'evidence'] ['permanent Stay' 'abuse of Process' 'historical Sexual Offences' 'delay' 'oppression' 'fitness to Stand Trial' 'forensic Disadvantage' 'disclosure']

Case Brief

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Procedural Posture

Criminal Proceeding for Historical Sexual Offences / Accused's Notice of Motion Dated 18 November 2020 Seeking a Permanent Stay of Proceedings Before Plea

Legal Issues

  1. 1 ['Whether the criminal proceeding should be permanently stayed as an abuse of process because it was unjustifiably oppressive to the accused.' "Whether the delay between the alleged offences and the prosecution, sequential charging, the accused's age and cognitive impairment, and alleged non-disclosure meant the accused could not obtain a fair trial."]

Ratio Decidendi

The application for a permanent stay was refused because, although the delay was very substantial, it was reasonably explained by the complainants coming forward only recently; the accused did not particularise lost evidence; the case was relevantly similar to McIver; any forensic disadvantage could be ameliorated by trial directions under s 165B of the Evidence Act 1995 (NSW); there was no prosecutorial misuse in sequential charging; the accused's own medical evidence showed he was fit to plead and capable of instructing despite mild cognitive decline; and the disclosure complaint could be pursued by coercive processes. The accused did not discharge the heavy onus of showing that he...

Court Disposition

Application for a permanent stay refused.

Orders

  • ['The application for a permanent stay is refused.']