R v W [2009] NSWDC 124

R v W [2009] NSWDC 124

Although the delay was appalling and had caused loss of witnesses and documents and affected witnesses' memories, the substance of the missing evidence was unknown, other witnesses remained available, and trial directions could address the applicant's forensic disadvantage. The applicant's psychological and cognitive condition did not raise a Presser fitness issue and, even combined with the delay-related disadvantages, was not such that any trial would necessarily be unfair. A permanent stay was therefore not justified.

Jurisdiction
Australia
Judgment Date
05 June 2009
Procedural Posture
Criminal Application for Permanent Stay of Proceedings Concerning Alleged Old Indecent Assault and Acts of Indecency / Pre Trial Application After Pleas of Not Guilty
Outcome
Application refused
Legal Topics
['permanent Stay of Proceedings' 'abuse of Process' 'delay' 'historical Sexual Offences' 'forensic Prejudice' 'fitness to Be Tried' 'cognitive Impairment']
['criminal Law' 'criminal Procedure'] ['permanent Stay of Proceedings' 'abuse of Process' 'delay' 'historical Sexual Offences' 'forensic Prejudice' 'fitness to Be Tried' 'cognitive Impairment']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Application for Permanent Stay of Proceedings Concerning Alleged Old Indecent Assault and Acts of Indecency / Pre Trial Application After Pleas of Not Guilty

Legal Issues

  1. 1 ['Whether delay in commencing and prosecuting the charges, together with the loss of witnesses and documents, meant that any trial would necessarily be unfair or an abuse of process.' "Whether the applicant's physical, psychiatric and cognitive condition, in combination with delay-related forensic disadvantage, required a permanent stay of proceedings." "Whether the applicant's condition raised an issue of fitness to be tried under R v Presser (1958) VR 45."]

Ratio Decidendi

Although the delay was appalling and had caused loss of witnesses and documents and affected witnesses' memories, the substance of the missing evidence was unknown, other witnesses remained available, and trial directions could address the applicant's forensic disadvantage. The applicant's psychological and cognitive condition did not raise a Presser fitness issue and, even combined with the delay-related disadvantages, was not such that any trial would necessarily be unfair. A permanent stay was therefore not justified.

Court Disposition

Application refused

Orders

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