The Queen v Beyer
[1999] QDC 261
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- The Queen v Beyer[1999] QDC 261
- Add to List
The Queen v Beyer[1999] QDC 261
The Queen v Beyer[1999] QDC 261
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Indictment No. 137/99 (Bundaberg) |
[Before O'SULLIVAN DCJ]
[The Queen v Broughton Edward Beyer]
THE QUEEN
V
BROUGHTON EDWARD BEYER
JUDGMENT
Judgment delivered: | 22 October 1999 |
Catchwords: | Criminal law - Stay of proceedings - Delay in complaint - Jago v District Court of New South Wales (1989) 168 CLR 23 |
Counsel: | Mr Clark for Applicant/Accused Mr Campbell for Respondent/Crown |
Solicitors: | Bedford and Associates for the Applicant/Accused Director of Public Prosecutions for Respondent/Complainant |
Hearing Dates: | 30 September 1999 (Bundaberg) |
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Indictment No. 137/99 (Bundaberg) |
THE QUEEN
V
BROUGHTON EDWARD BEYER
REASONS FOR JUDGMENT - O'SULLIVAN D.C.J.
Delivered the 22nd day of October 1999
This is an Application for a permanent stay of the Indictment against Broughton Edward Beyer alleging one count of indecent dealing.
The Crown has particularised the alleged indecent dealing as an incident when the complainant was 4 or 5 years old and was sitting on her father's lap in a wheelbarrow when he rubbed himself against her.
The complainant is now 55 years of age. The applicant is 78 years of age.
The Application is made on two grounds, delay and lack of Particulars.
1. Delay
In the leading authority of Jago v. The District Court of New South Wales (1989) 168 CLR 23, the High Court said, at page 34:
“In my event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare: Re Cooney [ (1987) 31 A.Crim.R 256, at pp.263-264]. To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”: Barton [ (1980) 147 C.L.R., at p. 111 per Wilson J]. Where delay is the sole ground of complaint, an accused seeking a permanent stay must be “able to show that the lapse is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute”: Clarkson [ (1987) V.R. at p. 973].”
Length of delay:
The delay is very long indeed, 50 years.
However, recent cases reveal that in the absence of actual prejudice even a lengthy delay is not sufficient to obtain a stay of proceedings: Edebone v. Allen (1991) 2 V.R. 659; In ex parte Rangle and Pottle (1991) 92 Crim.App. R. 323; R v. Frier (Unreported - Boulton DCJ- 2.11.91).
In R. v. Bruce Stephen Wriglev (Unreported - Court of Appeal 330 of 1998 - delivered 4.12.98), Chesterman J said, at page 5:
“Delay, even considerable delay, in prosecuting a charge is not enough to justify a stay of criminal proceedings. As a general rule, the public interest that persons suspected of committing offences should be prosecuted will not be overcome by delay in such a prosecution unless that delay has caused such disadvantage to the accused person as to deprive him of the chance of a fair trial. See Jago at 72 per Toohey J. The fading of recollection is normally a benefit to the defence, not a disadvantage. See Jago at 60 per Deane J.”
In R. v. Keith Ronald Noble (Unreported - Court of Appeal 252 of 1998 - delivered 18.12.98) Muir J., at page 6, referred to “the possibility of error in the complainant's recollection, having regard to her youth at the time” (she was six). He cited McHugh J. in Longman v. R. (1989) 168 CLR 79, 107-108.
In R. v. Edwin James Smith (Unreported - Court of Appeal 342 of 1998 - delivered 3.12.98), the Court said, at page 10:
“Because these alleged events are so extraordinarily old of course does not exclude a prosecution now, but it obviously gives real cause for concern as to whether a fair trial can be had”.
That case concerned an Indictment for 7 sex offences committed 35-39 years earlier on boys under 14 at the time. The accused at the time of the stay application was 72 years old. Circumstances referred to by the trial judge, in granting the stay, were the length of time, lack of specificity of dates of the alleged offences, death and unavailability of persons associated with the orphanage, the absence of documentary records and the respondent's real difficulty of recall. The Court of Appeal declined to disturb the exercise of the discretionary judgment of the trial judge.
In Edebone v. Allen (supra) the Court, in lifting a permanent stay for sexual assaults 6-8 years previously, said at page 664:
“As with every other serious criminal offence, and except in the circumstance where injustice will ensue, the horizon of the law is not limited. The long arm of the law cannot be amputated by the passing of time”.
Reasons for the delay:
The complainant says that she did not complain until her daughter, Cherie, complained to the police on 30 July 1998 about the accused's alleged sexual misconduct towards her. Her daughter had made earlier complaints - to the complainant prior to November 1979, and shortly after 12 November 1979 when the Police were called but no further action was taken.
The complainant states: “This has been eating at me for over 30 years and I don't want him to get away with what he's put me and my daughter through”.
The Crown Prosecutor informed me that the complainant was keen to proceed to trial.
In Jago (supra) Brennan J. recognized that interests other than those of the litigants are involved in litigation, especially criminal litigation. He refereed to the community having an immediate interest in the administration of criminal justice to guarantee peace and order in society, the need for law enforcement, delay not becoming immunity from prosecution, and the need for the courts to maintain public confidence.
This passage was cited with approval by the Court of Appeal in R. v. Edwin James Smith (supra).
Accused's responsibility for and past attitude to the delay:
The complainant deposes that when she was still young the accused said it was “our secret” and she musn't tell Mum. She remembers feeling very scared of him.
She told her then fiancee, now husband, about it in 1964 or 1965.
Since the complainant left home in 1967 she could have complained but did not do so. She confronted the accused at the time of an alleged incident involving her daughter in 1979.
Prejudice suffered by the accused:
The accused points to the fact that his wife died on 12 November, 1979.
He is now 78 years of age.
The circumstances here are similar to those which existed in R. v. Edwin James Smith (supra).
Public interest:
In Jago (supra), the Court said:
“In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and the processes preceding them are conducted fairly and, secondly, that, as as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In this sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed” (page 30).
“The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial....At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged” (page 33).
In Johannsen and Chambers (1996) 87 A.Crim.R 126, the Court of Appeal said, at page 135:
“A stay should not be granted if the prosecution can proceed, uninfluenced by improper purpose, without unfairness of the accused, with a legitimate prospect of success and, in the event of conviction, no significant risk that, because of delay or other fault on the part of the prosecution, an innocent person will have been convicted”.
In Walton v. Gardiner [1992-93] 177 C.L.R. 378, 395 the High Court said:
“As was pointed out in Jago,...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. Among 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.”
Generally:
I was also referred to R. v. James Clarence Hicks (Unreported - Kimmins DCJ - 20.2.95) R. v. Telford Justices ex parte Badhan (1991) 93 Cr. App.R. 17.
I consider that the Jago tests (cited above) cannot be met. In particular, the lapse of time is such that any trial would be necessarily unfair so that any conviction would bring the administration of justice into dispute. The community interests must be taken into account as well as fairness to the accused and to the complainant. I consider that this is an extreme case which does warrant a permanent stay. I grant the Application sought on this ground.
2. Particulars
There is a further, alternative, Application for a stay because of lack of Particulars.
I note that there was a substantial change of dates between the committal hearing on 8 July 1999 and the presentment of the indictment on 16 August 1999.
I consider that sufficient Particulars have been provided in the Indictment presented in this Court.
I refuse the Application on this ground.
Order:
I order that Indictment 137/99 issued out of the District Court at Bundaberg be permanently stayed.