McIver v R [2019] NSWCCA 214

McIver v R [2019] NSWCCA 214

Leave to appeal was refused because the Applicant failed to demonstrate any House v The King error in the District Court's discretionary refusal of a permanent stay. The primary Judge applied the correct principles, did not give improper weight to the public interest, did not rely on an irrelevant matter when considering complainants' memories in the context of submissions about prejudice and weaknesses in the Crown case, and was entitled to conclude that trial directions and the conduct of the trials could sufficiently address forensic disadvantage from delay. It was open to the primary Judge to refuse the permanent stay application.

Jurisdiction
Australia
Judgment Date
11 September 2019
Procedural Posture
Application for Leave to Appeal Under S.5 F Criminal Appeal Act 1912 Against an Interlocutory Judgment Refusing a Permanent Stay of Criminal Proceedings for Sexual Offences / Court of Criminal Appeal Application for Leave to Appeal From District Court of New South Wales Interlocutory Decision
Outcome
Leave to appeal under s.5F Criminal Appeal Act 1912 refused.
Legal Topics
['permanent Stay of Criminal Proceedings' 'abuse of Process' 'delay in Prosecution' 'forensic Disadvantage' 'sexual Offences' 'interlocutory Appeal' 'house V the King Discretionary Error' 'jury Directions Under S.165 B Evidence Act 1995']
['criminal Law' 'criminal Procedure' 'evidence'] ['permanent Stay of Criminal Proceedings' 'abuse of Process' 'delay in Prosecution' 'forensic Disadvantage' 'sexual Offences' 'interlocutory Appeal' 'house V the King Discretionary Error' 'jury Directions Under S.165 B Evidence Act 1995']

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Procedural Posture

Application for Leave to Appeal Under S.5 F Criminal Appeal Act 1912 Against an Interlocutory Judgment Refusing a Permanent Stay of Criminal Proceedings for Sexual Offences / Court of Criminal Appeal Application for Leave to Appeal From District Court of New South Wales Interlocutory Decision

Legal Issues

  1. 1 ["Whether leave to appeal should be granted under s.5F Criminal Appeal Act 1912 from the District Court's refusal of a permanent stay." 'Whether the primary Judge erred by giving undue focus to the public interest in conviction of those guilty of crime.' "Whether the primary Judge took into account an extraneous or irrelevant matter by referring to complainants' apparent memories and the strength of the Crown case." 'Whether the primary Judge failed to have proper regard to directions available to reduce forensic disadvantage arising from delay.' "Whether it was reasonably open to the primary Judge to refuse a permanent stay in light of the passage of time, unavailable witnesses, lost records, publicity, and the Applicant's age and frailty."]

Ratio Decidendi

Leave to appeal was refused because the Applicant failed to demonstrate any House v The King error in the District Court's discretionary refusal of a permanent stay. The primary Judge applied the correct principles, did not give improper weight to the public interest, did not rely on an irrelevant matter when considering complainants' memories in the context of submissions about prejudice and weaknesses in the Crown case, and was entitled to conclude that trial directions and the conduct of the trials could sufficiently address forensic disadvantage from delay. It was open to the primary Judge to refuse the permanent stay application.

Court Disposition

Leave to appeal under s.5F Criminal Appeal Act 1912 refused.

Orders

  • ['The Applicant was refused leave to appeal under s.5F Criminal Appeal Act 1912.']