Director of Public Prosecutions v O'Brien (a pseudonym) (No 2)

[2024] ACTSC 276

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v O’Brien (a pseudonym) (No 2)

Citation: 

[2024] ACTSC 276

Hearing Date: 

3 September 2024

Decision Date: 

4 September 2024

Before:

McCallum CJ

Decision: 

The young person’s application filed on 30 August 2024 seeking a temporary stay of the proceedings is dismissed.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application for a temporary stay of proceedings pending payment of allegedly wasted legal costs – where proceedings adjourned due to late disclosure of material by the prosecution – whether conduct amounted to misuse of the court’s process by those responsible for law enforcement – whether costs wasted 

Legislation Cited: 

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 76, 78

Cases Cited: 

Grey v The Queen [2001] HCA 65; 75 ALJR 1708

Petroulias v R [2007] NSWCCA 154; 176 A Crim R 302

R v Bui [2011] ACTSC 102; 5 ACTLR 230

R v Grey [2000] NSWCCA 46; 111 A Crim R 314

R v Nozhat [2018] ACTSC 317

R v Roy [2023] ACTSC 174

Parties: 

Director of Public Prosecutions

Nathan O’Brien (a pseudonym) ( Young Person)

Representation: 

Counsel

K Musgrove ( DPP)

K Lee ( Young Person)

Solicitors

ACT Director of Public Prosecutions

Hugo Law Group ( Young Person)

File Number:

SCC 95 of 2023 

SCC 96 of 2023 

SCC 323 of 2023 

McCALLUM CJ:

EX TEMPORE REASONS (REVISED)
           

1․Nathan O'Brien (a pseudonym) is due to stand trial for a series of sexual offences alleged to have been committed against four different complainants.  The pseudonym has been allocated because the accused is a young person.  The trial is listed to commence on 14 October 2024.  The complainants were due to give pre-trial evidence in dates in August.  Unfortunately, for reasons I will explain, not all complainants could proceed to give evidence on the dates allocated and two will now have to give evidence in the trial instead. 

2․The proceedings came before me yesterday for the hearing of three pre-trial applications. The first is an application in proceeding filed by the DPP on 16 August 2024 seeking leave under ss 76 and 77 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to adduce evidence of the sexual activities of one of the complainants.

3․The second is an application in proceeding filed on 30 August 2024 which follows upon the filing of an amended indictment on 23 August 2024 that includes an additional count in relation to one of the complainants.  The application seeks to extend the tendency ruling given in an earlier application in the proceedings determined by Mossop J to the evidence of the new count 13.

4․The third is an application brought by the young person, also filed on 30 August 2024.  He seeks a temporary stay of the proceedings pending payment of the allegedly wasted costs arising from the events that gave rise to the two applications brought by the Director.  Mr Lee, who appears for the young person, helpfully agreed that, for convenience, the Court could hear all three applications at once, and that is what I did yesterday.  However, it is important that I determine the stay application first.  That is because the power to grant a stay is premised on the establishment of injustice to an accused by abuse of the Court’s processes.  Accordingly, it is appropriate when such an application is brought to determine it immediately, before taking any further step in the proceedings.  To adopt any different approach could suffer the Court to become an instrument of the very abuse complained of, if ultimately established. 

5․I turn then to deal first with the young person’s stay application.  That the Court has power to grant a temporary stay pending payment of costs in circumstances of unfairness amounting to abuse is not in dispute.  I had occasion to consider the relevant principles last year in the matter of R v Roy [2023] ACTSC 174. The principles I applied in that case had been summarised in the decision of Burns J in R v Nozhat [2018] ACTSC 317 at [14] to [16], in turn citing the decision of Refshauge J in R v Bui [2011] ACTSC 102; 5 ACTLR 230. In particular, in Bui at [90], Refshauge J referred to a principle derived from the decision of the New South Wales Court of Criminal Appeal in Petroulias v R [2007] NSWCCA 154; 176 A Crim R 302, where Ipp JA, with whom Latham and Fullerton JJ agreed, said at [17]:

In determining whether a stay should be granted in the exercise of this power, the focus will be on the misuse of the court’s process by those responsible for law enforcement.  As a general proposition, default or impropriety on the part of the prosecution can, depending on the circumstances, be so prejudicial to an accused that the trial is made an unfair one.  The touchstone in every case is fairness.  The power is to be exercised only in the most exceptional circumstances.

6․In my judgment in Roy, I noted at [10] that, where a stay is sought on the basis of allegedly wasted costs, the abuse is eminently curable. That was in response to a submission made by the Commonwealth DPP in that case that the prejudice that must be established must be so exceptional as to amount to an incurable abuse of the Court’s processes. However, I went on to note:

That is not to say that the remedy of a conditional stay should be granted for the asking whenever costs are said to have been “wasted”.  The nature of criminal proceedings is such that the goal posts often shift.  The touchstone is fairness, but fairness judged in that context; in other words, in the understanding that the defence of criminal charges will often involve expenditure that turns out to have been wasted and that that wastage will not amount to abuse or prejudice of the kind that should warrant a stay of the prosecution of serious charges.

7․I further noted at [14] of the judgment that, where the alleged prejudice is that costs have been wasted during the course of preparation for a trial, while the obvious remedy is for compensation to be provided to the accused for those wasted costs, it would have to be established in such a case that the wastage of costs was more than just a reflection of the vicissitudes of defending criminal proceedings, and instead amounted to real prejudice or unfairness measured by reference to the conduct expected of the prosecuting authorities.  It may be noted that those remarks at [14] ought to have been qualified in the same way as my remarks at [10], that the wastage must amount to an abuse of the process of the Court by the prosecuting authorities.

8․Turning to the present application, it was based broadly on the circumstances that gave rise to the adjournment of the listing for pre-trial evidence.  Three matters were identified as having given rise to a waste of costs, with the primary focus of the application being on the first of those matters.  They were, first, the late disclosure of material necessary for the cross-examination of the complainant to whom I will refer as complainant A;  secondly, the late obtaining of a further statement from the complainant to whom I will refer as complainant B, leading to the further count to which I have referred; and thirdly, the late realisation that the complainant to whom I will refer as complainant C was not entitled as a right to give pre-trial evidence so that it was necessary for the prosecution to make an application invoking the Court's discretion to allow her to do so. 

9․Turning first to the late disclosure, the circumstances in which that occurred arose from the evidence of a different complainant.  It became necessary, in light of her evidence, for the Crown to proof her during her cross-examination.  At that time, she disclosed that she had sent text messages to the informant, including screen shots she regarded to be relevant to the police investigation.  There had been no reference to that material in the brief served on the young person, in particular, in the informant’s statement.

10․Mr Lee accepted, or at least made plain, that he was not suggesting that every text message sent by a complainant to an investigating officer must necessarily be disclosed to the defence.  He noted, however, that in the circumstances here, the complainant was saying that what she had sent was what she regarded to be important information.  That disclosure in turn led to the disclosure by the prosecution of a PROMIS record which, in turn, disclosed the existence of text messages sent to the investigating officer by complainant A.  The PROMIS record included the following record: 

07.09.22 Text message received from [complainant A], said she’s done some thinking and no longer feels comfortable proceeding to an interview (EICI).

11․Mr Lee submitted that, had that material been disclosed earlier, proper enquiries could have been made on behalf of the young person as to why complainant A was “no longer comfortable” giving an EICI.  He asked rhetorically whether it might be because she lied or exaggerated or because of anxiety.  Mr Lee reminded me in that context that the test is not whether the material not disclosed would be relevant, but whether it could possibly raise a new issue.  He further noted that the young person does still not have the underlying text message referred to in that police record.  It is held by the AFP and ought to have been disclosed separately. 

12․In relation to complainant A, a police officer recorded their first exchange with her on their body-worn camera.  In their statement, they said “I annex my body-work camera footage”.  However, the footage was not in fact annexed.  The Court was informed that that material consists of a recording of approximately 20 minutes length, that the sound quality was poor, and that it is plainly material that the young person was entitled to see in a more timely way, whether or not it contains any prior inconsistent statement.  Mr Lee contended that, as a result of those two late disclosures, through no fault of the young person, the pre-trial evidence of complainant A had to be adjourned. 

13․Secondly, as to the pre-trial evidence fixture, the young person relies on the fact that the DPP made a very late application to lead evidence of the prior sexual activity of complainant A.  That was in the context that the young person had written several letters to the DPP seeking a specific answer to that question.  None of those requests was responded to in substance. 

14․Is well understood by this Court that the DPP was experiencing some turmoil during that period, with a new Director have commenced and a number of members of staff leaving.  Those circumstances are specifically recited in the responses to the correspondence, which on two occasions indicated that the reason the question could not be answered was that the person in charge of the file was leaving and that the new person with conduct of the matter would respond to the questions in due course.  As submitted by Mr Lee, however, the existence of that change in the office of the DPP is not the fault of the young person.  Its consequences should not be visited upon him or dilute his right to a fair trial.  Mr Lee submitted, with respect correctly, that the accused ought to have been entitled to give timely instructions about those matters and make a decision as to whether to make any further enquiries about the prior sexual activity. 

15․The application was indeed precipitated by the process of the parties attempting to agree upon edits to complainant A’s EICI. The prosecutor initially agreed to exclude the material of prior sexual activity. It was only when the young person indicated that he sought a further edit from the material that, following an exchange with the judge before whom the pre-trial evidence hearing was listed, the Crown to made an application under s 76 of the Evidence (Miscellaneous Provisions) Act for leave to adduce the evidence.  The young person’s evidence established that Mr Lee found out about the application only on the morning of cross-examination of that witness.

16․It was submitted that those two failings amounted to unsatisfactory conduct on the part of the DPP that was capable of leading to serious unfairness and necessitated the adjournment, despite the young person’s attempts to have those issues resolved before the hearing.  Mr Lee submitted that those matters, in combination, amount to a serious default resulting in the young person incurring unnecessary costs. 

17․Separately, two other categories of wasted costs were relied upon, although it was made plain by Mr Lee that they may not, of themselves, have warranted the application.  The first was the circumstances of complainant B.  The prosecutor was initially of the understanding that complainant B could give evidence at a pre-trial hearing as of right.   It was realised only late that she could not, because the offences with which the young person has been charged concerning her are not sexual offences within the meaning of the Evidence (Miscellaneous Provisions) Act.  Mr Lee accepted that the Court could have made an order for pre-trial evidence in the exercise of its discretion but contended that submissions would have been made on that issue and, in any event, once it was made plain that the witness may need to be recalled later following a Basha enquiry concerning another related witness, the Crown withdrew the application.

18․In my respectful opinion, while that circumstance was unfortunate, it is, in part, a function of the application of the provisions of the statute and the possibly unintended aspect of the legislation that the offences relating to complainant B are not defined as “sexual offences” notwithstanding the fact that the circumstances of those offences plainly may well have warranted consideration of her as a witness as to whom pre-trial evidence should be allowed.  I make no final determination of that issue, not having heard the submissions Mr Lee says he would have made had the application been proceeded with.  I am simply pausing to observe that the provisions dealing with special procedures for witnesses in cases of the present kind have their complexities and their application is not always simple. 

19․The third category of wasted costs was the costs of the complainant to whom I have referred as complainant C.  She was unable to give evidence at the pre-trial hearing because of the new allegations.  Mr Lee submitted that she should have been proofed earlier and that the enquiries that led to her further statement should have been made earlier.  He submitted that there was no indication as to why that did not occur.  In the event, Mr Lee received the transcript of her supplementary statement on 9 August 2024, which did not leave sufficient time for the young person properly to prepare to cross-examine her on the date scheduled.

20․One further matter relied upon by Mr Lee was the late service of the EICI for a witness related to complainant A. 

21․Mr Lee submitted that the combination of those matters amounted to a relevant serious unfairness warranting the grant of a stay.  Mr Lee’s written submissions set out in some detail the authorities concerning the Crown’s duty to disclose.  In particular, he noted that the authorities hold that an accused person should not have to “fossick for information” to which they are entitled: Grey v The Queen [2001] HCA 65; 75 ALJR 1708 at [23]; or “engage in a complicated detective exercise” to obtain it: and R v Grey [2000] NSWCCA 46; 111 A Crim R 314 at [39].

22․So much may be accepted.  The reality is, however, that the obligation of disclosure on the prosecuting authorities is sometimes messy and organic.  The failure to disclose in the present case does not, in my view, fall into the category of a serious breach of the authority’s duty to disclose, such as to give rise to a concern as to the propriety of those who have given disclosure in the proceedings.  I mention that because one aspect of the application is to seek a further condition of the stay sought, not only that the costs be paid, but that the DPP provide an undertaking that it has served on the young person’s legal representatives all disclosable material presently held by it.  In my respectful opinion, a court would not require such an undertaking in the absence of some demonstration of a systemic or grave failure to comply with the obligation described in the authorities.

23․In my assessment, the defaults which have been relied upon and which I have described in some detail do not reach the point of amounting to substantial prejudice or unfairness such as to warrant the exceptional remedy of staying the proceedings.  In particular, I have had regard to two important considerations in this case which, in my view, militate against the grant of a stay.  The first is the very serious nature of the allegations.  The second is the fact that the proceedings currently have a hearing date of 14 October 2024.  It is a serious matter for this Court to prevent the Director from discharging her statutory function of prosecuting serious charges in this Court.  I do not think the conduct which the young person relies upon warrants interference with the discharge of that function. 

24․Separately, I have had regard to the fact that, as submitted by Ms Musgrove on behalf of the Director, there is a remedy available in the present case, namely that the material has now largely either been provided or will be provided in accordance with the obligation of the Director.  As to costs, I note that there was no evidence to suggest any significant waste of costs.  In that respect, I accept Ms Musgrove’s submission that, in large measure, the work that has been done will remain useful for the trial.  As Ms Musgrove put it, foundational time spent in preparation is not time lost.  For those reasons, the application for a stay is dismissed. 

25․Turning to the application for leave to adduce evidence of prior sexual activity of complainant A, the application is focused on the content of her answer at question 9 of the EICI, in particular, her explanation as to why she “froze”.  The disputed part of the answer states:

… then I froze because I was so – like, from my previous – my previous situation that I’ve had with another person, um, that's all been reported and stuff, so that's all – anyway, um, I froze and started thinking about what he did and then – because he is – he is known to – if you try to fight back he's known to make it 10 times worse.

26․She then said she went along with it “because [she] was scared”.  Later in the same answer, she said, “and all that was playing through my head was my cousin, um, and what he did and then how he made it 10 times worse any time I try and fought back”.  The burden of those parts of the complainant’s evidence, in my assessment, is that by way of explanation for why she did not react in any active way, or “fight back” when she alleges she was sexually assaulted by the young person, she referred to an earlier sexual experience in which she was allegedly assaulted by her cousin. 

27․Contrary to submission put by Mr Lee, I do not understand the prosecution to rely on that material to support the complainant’s evidence on the basis that, if she had said that she had been sexually assaulted before and that was true, it was more likely that her complaint in the present proceedings was true. Rather, I understood the prosecution to rely on the material as an explanation for the freeze response to the conduct alleged against the young person. For that reason, it seems to me that the evidence is plainly relevant and plainly satisfies the test in s 78 of the Evidence (Miscellaneous Provisions) Act. 

28․My concern in relation to this evidence derives from the content of the affidavit of Ms McKenzie sworn in support of the application and in particular the statements of the complainant in relation to the proposal to adduce that evidence.  The complainant has evidently been legally represented by Ms Erin Priestly from the Sexual Violence Legal Service or at least Ms Priestly was present when she was conferenced by the prosecutor.  Ms McKenzie's affidavit set out the following information derived from that interview:

Ms Priestly confirmed that she had taken instructions from the witness and said words to the effect of: ‘[redacted] is generally supportive of the application, but she does have safety concerns about the information being presented in court. She would request for an application to be made for the application of Tuesday to be heard in a closed court and that the court be closed for any evidence to be given and a non-publication order on that evidence. Given the sensitivity of the evidence and how it could identify her, she would prefer no reporting on the evidence if it was to be led.’

When asked for their views, [redacted] said words to the effect of: ‘If this does brought into the matter … they might use that against me to say … she has a previous history of this … Is that going to happen to me by the judge if this comes up against me in the trial dates? Am I going to be asked that? I don’t want to be asked that at all … I want it to be limited. Only what’s needed. Anything that isn’t needed in this case I want to be kept out. Anything that is needed I’m happy for that to happen but only what’s needed.’

29․My concern is that it appears from those responses that the complainant is only happy for the previous matter to be raised in the trial if it can be limited.  It is not possible for me to know the scope of her concern but clearly, if the material is to be admitted, it cannot be limited to the detriment of the young person’s right to a fair trial.

30․A separate concern raised by Mr Lee is that he submitted that if the evidence were admitted, he may wish to retain on behalf of the young person an expert such as Professor Goodman-Delahunty who might give opinion evidence as to the impact of a prior sexual assault on memory.  It is not clear to me that that material would be helpful or admissible in the circumstances of this case.  It does not seem to me that complainant A, in explaining what she alleges happened to her, was suffering from the kind of difficulties of memory that Professor Goodman-Delahunty’s work is known to address, but I may be wrong about that and that is not my reason for dealing with this application in the way I am. 

31․What I am concerned about is the extent to which the young person may have to make enquiries to test the evidence and the extent to which that may trespass on the complainant’s concern that the evidence, if admitted, be limited to “only what is needed”. 

32․As observed during argument, the trial is some six weeks away.  The prosecution does not have any further information than is before the Court as to the outcome of the earlier incident concerning complainant A’s alleged assault by the cousin.  It may be that that is a matter of public record and that he was convicted and sentenced for those offences.  It may be that the allegation has never been reported or prosecuted.  The outcome of those enquiries may make a difference to the balance of fairness in determining whether to grant leave or not to adduce the evidence. 

33․I would also wish to have further information from the Sexual Violence Legal Service as to the position of the complainant, particularly as one of the words used in their description of her attitude to the application is that the complainant does have “safety concerns” about the information being presented in Court.  For that reason, as foreshadowed during the hearing, I consider it preferable not to finally determine this application at this stage, but rather to leave the matter to be reagitated before the trial judge.  I will have to hear the parties about the form of order that should be made about that, lest I be considered part-heard, and I will come back to that.

34․The third application is the tendency application, and that can be determined quickly.  The parties accept that the new count 13 is governed by the ruling given by Mossop J.  The young person indicated that he does not wish to be heard on the application and accepts that the incident the subject of the application falls within the ambit of the original tendency ruling made but has foreshadowed the possibility of a further severance application by reason of the inclusion of that additional count.  The young person noted that the tendency ruling may need to be revisited at that time but accepted that that is not a reason not to grant the order as sought by the prosecution.  For that reason, the third application will be granted. 

Orders

35․For those reasons I make the following orders:

(1)The young person’s application filed on 30 August 2024 seeking a temporary stay of the proceedings is dismissed.

(2)The DPP’s application dated 16 August 2024 to adduce evidence of sexual activities of the complainant [name redacted] is stood over to 1 October 2024 at 9:30 am part-heard before me.

(3)I direct the DPP to serve any further material relied upon in support of that application on or before 25 September 2024.

(4)I grant liberty to DPP to approach chambers if the 1 October 2024 date is not required.

(5)I make order 1 in the application dated 30 August 2024 to adduce tendency evidence: that the DPP be permitted to adduce tendency evidence as notified in the Notice of Tendency to Adduce Tendency Evidence dated 30 August 2024.

(6)I grant leave to the young person to file a severance application returnable before me on 1 October 2024 at 9:30, any such application to be filed on or before 25 September 2024.

I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: