Baldwin v The Queen

[2005] HCATrans 244

[2005] HCATrans 244

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S269 of 2004

B e t w e e n -

WAYNE NORMAN BALDWIN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 APRIL 2005, AT 3.12 PM

Copyright in the High Court of Australia

MR M. THANGARAJ:   Your Honours, I appear for the applicant with MR I.S. McLACHLAN, my learned friend.  (instructed by Ebsworth & Ebsworth)

MR L.M.B. LAMPRATI, SC:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions)

McHUGH J:   Yes, Mr Thangaraj.

MR THANGARAJ:   Your Honour, can I briefly go through a chronology of what happened in this matter.  1981 to 1984 was the alleged offences.  On 21 September 1986 the complainant made a complaint to police about a physical assault only.  The following day the first statement was taken from the complainant, which included allegations of sexual misconduct, but that statement was ultimately lost.

The middle of the following year a second statement was taken and he said, amongst other things, that he did not want to proceed earlier, that he had spoken to a Kevin Reed, his friend, and now did want to proceed.  The applicant was subsequently charged with five sexual offences.  August 1988, a couple of years after the statement, there was a trial set down.  On the day of the trial the complainant is contacted by police and says that he does not wish to go ahead, does not wish to come to court to give evidence.  He claimed that a Mr Reed witnessed two big men outside his door threatening him to not go to court.  Mr Reed was going to be a witness at the trial, of the current trial, the trial from which a conviction was found ‑ ‑ ‑

GUMMOW J:   How does this work procedurally?  There has been a new trial directed.

MR THANGARAJ:   Yes.  After the Court of Criminal Appeal ordered a retrial, during argument we asked firstly that the court stay the trial as a miscarriage initially but in any case if the court ordered a retrial on the separate point which was successful, the court ought not order a retrial and should in fact order a permanent stay.

At the current trial Kevin Reed was a proposed witness, and the Crown informed the trial judge that he was a proposed witness, but he informed the court that he was not really able to assist on the permanent stay application, notwithstanding the complainant’s allegations that Mr Reed witnessed and was present during him being threatened as to not go to court.  Can I just quickly take your Honours through the supplementary book?

GUMMOW J:   But what the Court of Appeal was dealing with, if you look at page 58, appears from - the CCA was dealing with – page 58, paragraph 32.  That is at an anterior stage to the stage which you are now seeking a stay, is it not?

MR THANGARAJ:   Your Honour, as I said, a stay was sought on two separate bases.  One, the trial should never have gone ahead in the first place and that there was a miscarriage by the mere fact of a trial taking place.  Secondly, as it became clear that the court was going to agree that a relationship direction ought to have been given, it was therefore in a position to order a retrial, that that court – the appellate court should not order a retrial and should in fact permanently stay the proceedings.  So while that is what the court said at paragraph 32, that is the way in which the CCA hearing was conducted.

GUMMOW J:   And did they refer again to your second submission?

MR THANGARAJ:   No, although to be fair to the court, the court did find that a permanent stay ought not be granted.  So it would not have made any difference.  Could I quickly take your Honours to the supplementary book.  This is the background to the allegation by the complainant that not only was he threatened to not come to court in 1988, and that is the reason why he did not come, but that in fact he had told the police of that very fact.  This material was before the trial judge on the permanent stay application, and obviously before the Court of Criminal Appeal.  Page 1 of the supplementary book is a contemporaneous statement of Detective Senior Constable Thomas.  As your Honours will notice, it is the date of the trial, 15 August 1988.  Paragraph 5:

“On 2 July” the complainant asked, “Is Court still on in August.”  Over the page, another day, 5 August, “Is Court still on the 15^th?”  Paragraph 8, is the day of the trial, and the bottom three lines – after determining that the complainant was not coming to court the officer says:

why did you leave it to the last minute?”  He said, ‘I don’t know, Kevin and I talked about it and I was coming but now I won’t.’”

Kevin Reed was not called on the stay application, and perhaps he should have been, to explain what it was in fact that was discussed, but that is not really in issue today.  The next paragraph, the officer tries one more time and says in fact, “I will have a Police car attend your house”.  So if the complainant was telling the truth and that in fact he was being threatened by men and in fact had made a complaint to The Entrance Police Station immediately as he maintains, what he would have wanted the most was a police car to attend his house.  He says, “Don’t worry I’m not coming and I won’t be here”, so obviously the two men are not going to stop him from leaving, notwithstanding his earlier comments, and the officer says, “I wish you had spoken to me earlier about your apprehensions.”  It is clear that that is why the officer believes he is not coming, because he is apprehensive about it – nothing to do with any threats.

Over the page he is cross‑examined at the committal in 2001.  Line 40:

Q.       You told the police how some threats had been made against you did you?
A.       Yes.

Q.       Which police . . . 
A.       I can’t remember.

“The ones involved” in the present case.  “Yes.”  That is not the evidence of the officer.  And there was no evidence that he complained to anyone at any time, whether it is The Entrance police or the officers in the case.  Following on:

Q.       Well threats were made against you, can you say exactly what they were?
A.       I was told by two guys who came to the door not to go to the Court, I was to stay home and they sat out in a car out the front of the house out on the main road –

He later claims that he went down to the shops.  Continuing next page, line 4:

Q.       Did you say to Kevin there’s two guys outside?
A.       He answered the door.

Line 14:

Q.       What did you tell the police?
A.       I left a message for The Entrance police station, I gave my name and that and told them that I was supposed to go to court and I’ve had a threat and could the detective please ring me.

No evidence of that, apart from him.  Line 31:

Q.       And you wanted the police to come and protect you?
A.       Well I was trying to get the message across to the police ‑ ‑ ‑

GUMMOW J:   We can read all that.  You are using up your valuable time.

MR THANGARAJ:   Your Honour, I do not need much time on the law.  If I just take your Honour to the paragraph ‑ ‑ ‑

McHUGH J:   But this is a special leave application.  What is the special leave point in the case?

MR THANGARAJ:   Your Honour, the point is what limits exist on a Director to reinstitute proceedings after an earlier no bill.

McHUGH J:   Well, that does not strike me as formulating any sort of a legal principle – question for legal determination; what limits.

MR THANGARAJ:   Your Honour, at the moment if an innocent person is accused by a complainant, a complainant can choose not to go to court, can choose not to attend a trial.  The Director, who would otherwise not obtain a vacation, can enter a no bill, and the complainant can come back in 10, 20, 30 years time and reinstitute proceedings.

McHUGH J:   Not necessarily, it depends on the particular circumstances of the case.

MR THANGARAJ:   Well, your Honour, the circumstances of this case – and that is why I was taking your Honours through the evidence was ‑ ‑ ‑

McHUGH J:   Yes I know, but that only means there is a question of fact involved in the case.  We do not sit here as a Court of Criminal Appeal.  We can only take 50 or 60 cases a year.

MR THANGARAJ:   Your Honour, the reason why we say there is a general point of importance, assuming that the complainant has lied about not coming to court, it seems the Court of Criminal Appeal did not accept that, or does not analyse what we said about that below, but assuming that that is the case, the situation is that the Director, months after the trial did not start, entered a no bill, presumably after discussing the matter with the complainant – although that is only an inference – did not choose to subpoena the complainant, chose to enter a no bill and then reinstituted proceedings on 25 new charges that did not exist at the time of the original trial.

If the trial had proceeded on 15 August 1988 the applicant would have faced only five charges.  The 25 new charges were all said to have occurred before the time of the trial.  There is significant prejudice to this person, not only by the Longman type delay, but by the actual facts of such a serious amendment to the indictment.  He ultimately received a 15 year non-parole period.

By analogy – let us say in a fraud case the Director requires some documents on subpoena at a trial.  The subpoenaed documents do not arrive, the matter is vacated and the Director chooses not to issue the subpoena, cannot run the case, enters a no bill - 11 years later the subpoena is done in the same way that a complainant could have been subpoenaed, the material comes forward.  At the moment there is nothing to preclude the Director from doing anything.  There are just no limits whatsoever, and that is the question of general importance, apart from miscarriage, in this case.

None of this was before the jury obviously.  A tactical decision admittedly was made not to run the 1988 material, but the point is that the law as it currently stands is what the Court of Criminal Appeal has said, an innocent person literally could have a charge by a vindictive complainant held over their heads for decades.

McHUGH J:   Well, if the person is vindictive it would be an abuse of process.

MR THANGARAJ:   That is the point, your Honour.  The problem at the moment is that would be – as it currently stands, those questions would be left to a jury because ‑ ‑ ‑

McHUGH J:   No, no.  In an appropriate case the court will stay the proceedings.  We have no findings of fact that are favourable to you, apart from the fact that you claim that you suffer prejudice and the Court of Criminal Appeal did not think you did.

MR THANGARAJ:   Your Honour, it is not only the prejudice of the lost file, the lost statement, Legal Aid file or loss of statement, but this means that a director can literally – and, in our submission, the complainant was in fact running this prosecution ultimately because he chose not to come to court, he was not compelled to come to court, he decided over a decade later he was ready, and the proceedings simply reinstituted.  The d could never have told the trial judge, “We’re not ready to proceed today.  Could we have an 11 year adjournment?”  It was simply a matter of not proceeding, entering a no bill months down the track, not seeking a new trial, not trying to compel the complainant through subpoena.  Understandably the accused when he is arrested, as it is in the appeal book, says, “I thought this had all been thrown out.”  Not a legal position but an understandable one that he would have an expectation after a decade that that was the position of the Director and the system and then this happens.

Now, the point of principle is important also to local court matters because the police withdraw matters before the court, in the same way as the Director no bills matters.  These matters, there are hundreds of these a week.  If an accused person or a defendant knows that this could come back at any time in the future there may be far less withdrawals and pleas on that basis – or negotiations on that basis, because it is not complete.  It is expected that there is some sort of limit on when matters can be revived after a withdrawal in a summary court or a no bill in the superior courts. 

What is it that a person is supposed to do?  In our submission, with respect, there must be some limits – and this is an appropriate case where, because of the nature of the delay, it must have been obvious to the Director after the complainant’s committal evidence that he was lying, that it must have been obvious - he was not compelled to give evidence originally - that there should have been a permanent stay, and the question ‑ ‑ ‑

McHUGH J:   But why?  The facts – this is a horrible case.  I mean speaking for myself, I think your client might have been lucky to get a new trial, but that is another matter.  Why could the Director not have taken the view that, given the allegations in this case, it was a proper case to bring before a jury notwithstanding the long delay?  The Director has to weigh up the public interest as well as your client’s rights, and so have the courts.

MR THANGARAJ:   That is correct, your Honour, with respect, but this is a case where the complainant also, for no good reason, it is respectfully submitted, chose deliberately not to go to court at the appropriate time, and has waited over a decade to do so.  Now, there must be ‑ ‑ ‑

McHUGH J:   The complainant is not a party in any proper sense of the term.

MR THANGARAJ:   No.

McHUGH J:   In fact, one of the criticisms of the justice system is that complainants, victims, are not parties.  They are not represented.

MR THANGARAJ:   Your Honour, I accept that, but the problem is at the moment there currently stand no limits.  If this was a permanent stay case, and evidence was given by both persons on the permanent stay application, for example, the judge may well be inclined to say, “Well, these are questions of credit that go before the jury.”  In the case of L, if I could quickly summarise that case, allegations were made by a stepdaughter – these are in the submissions – proceedings did not proceed, she did not want to come to court.  Five years later, in order to get an AVO she came to court.  She sought the AVO and reinstituted the proceedings.

Now, it was clear that there was a collateral purpose, and the Local Court, and then the Supreme Court, simply said, “Well, those matters can be explored at the trial.”  But these are not matters that are appropriate to be explored at a trial in every case.

McHUGH J:   Why?  Because it is juries who should determine the facts in criminal cases and courts should intervene, stop prosecutions, only in extreme cases.  I played some part in starting this jurisdiction about staying these cases, and I am not unsympathetic to people who have to meet cases after many, many years delay.  It is a matter of discretion.

MR THANGARAJ:   Your Honour, if it is a jury question then it is not a question that should be resolved by a trial judge on a permanent stay application, and that means the person will go to trial.

McHUGH J:   Yes, well that is right.  In most cases that is the way the matter proceeds.

MR THANGARAJ:   Your Honour, in our respectful submission, because of the principles that this case would resolve on no bills and on withdrawals, there are ‑ ‑ ‑

McHUGH J:   But you have not even formulated a principle yet.  What is the principle of law that would be of general application that you formulate, that you say that to decide this case we would have to formulate a concrete principle that could be applied in a multitude of cases?  What is the principle?

MR THANGARAJ:   That especially after a lengthy delay that in circumstances where a no bill has been entered, or a summary matter withdrawn, the prosecution need to show some legitimate reason to revive the proceedings.

GUMMOW J:   What do you mean by “legitimate”?

MR THANGARAJ:   Well, for – and the authorities are clear that a no bill can be revived.  That would be in circumstances (1) additional evidence comes forward.  The Crown Prosecutor looks at the matter for the first time, after it has come through the police, and determines there is no merit or there are no reasonable prospects.  However, in the next - some period of time evidence comes to light which shows that there is a reasonable case.  That would be a legitimate case.

McHUGH J:   But this assumes the Court has some discretion about the matter.  The Court has no discretion except to protect its own process.

MR THANGARAJ:   Yes.  Well, that is why ‑ ‑ ‑

McHUGH J:   From its process being abused.  The fact that fresh evidence comes to light or not has nothing whatever to do with whether or not the Court’s process is being abused.  Basically, this is about either somebody being unfairly prejudiced, so that the person cannot properly defend him or herself, or the proceeding is being used for an improper purpose.  They are the two governing principles.

MR THANGARAJ:   Yes.  Your Honour, in our respectful submission, this should be a new category of abuse of process when, without legitimate reason, matters are revived after a lengthy delay, after a no bill or a withdrawal.  The actual prejudice to this person was not only the Longman type delay but the significant amendment to the indictment, which all should have been done in 1988.  If the complainant had come to court in 1988 the accused would have had a sentence of some short number of years and the whole thing would have been behind him.

There is no legitimate reason why the 26 count indictment was not run in 1988 when it was a five count indictment.  All the offences are said to well pre-date that trial date.  All from 1981 to 1984.  That is the actual prejudice that this applicant has been subjected to.  It is a serious prejudice.  He was sentenced to what would have been possibly an extra 10 years as a non-parole period, compared to what would have happened in 1988, in circumstances where the Director must have known in 2001 that the complainant’s excuse for not coming to law was not appropriate – was not correct.

There is just no law on what limitations there should be.  It may be the High Court determines that there should not be any limits, but at the moment it is simply a case of the Director can revive after a no bill, no matter what the complainant seems to have said or done, and no matter how much time has passed, because if this matter occurred 10 years down the track there would be no extra prejudice.  So it would be 21 years.  What about 31 years?

McHUGH J:   Well, it might be.  It might be 50 years.  The point is that the principles that govern abuse of process are, “Has there been such delay that the accused cannot obtain a fair trial, or are the proceedings being launched for an improper purpose?”  Now, they are the principles that govern.

MR THANGARAJ:   Your Honour, our submission below and here is that it is an abuse of process in these circumstances.

McHUGH J:   Yes, thank you.  The Court need not hear you, Mr Lamprati.

There is no reason to doubt the correctness of the decision in the court below on this point.  Accordingly, special leave to appeal is refused.

AT 3.32 PM THE MATTER WAS CONCLUDED