Dja v Director of Public Prosecutions (Queensland)

[2006] QDC 330

[2006] QDC 330

DISTRICT COURT
CRIMINAL JURISDICTION

JUDGE ROBIN QC

Indictment No DCR121 of 2006
DJA Applicant
and

DIRECTOR OF PUBLIC PROSECUTIONS (QUEENSLAND)	Respondent
TOWNSVILLE ..DATE 18/07/2006
ORDER

Catchwords

Criminal Code s590A - unsuccessful application for permanent stay of charge of rape for abuse of process insofar as the indictment placed the offence in a three-month period after the police Prosecutor had sought an amendment at committal to allege a specific date in reliance on the evidence of a person to whom complainant had been made by telephone (following initial reservation of a period of months) - notified alibi for the specific date - trial venue changed to district of alleged offence where appeared committed to Townsville was through inadvertent circumstances in which it was directed cross-examination of the complainant in advance of the trial.

WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings.

18072006 T17/KLW M/T TSVDC2/2006 (Robin DCJ)

HIS HONOUR: There is an indictment before the Court charging	1
the defendant with one count of rape which was presented before Judge Pack on the 10th of April 2006. The offence is alleged to have happened at Charters Towers on a date unknown in a period which effectively covers June, July and August

10

2004. That way of identifying the date of the offence has
produced the application which the defendant's solicitors
filed on the 5th of July 2006 seeking a permanent stay of the
indictment which is said to have been presented on the 7th day

of April. That would appear to be the date of signature of

20

the document by Mr Richards.

It also sought in the alternative that the trial be transferred to Charters Towers and that the defendant have an opportunity to cross-examine the complainant before the trial.

30

As to the stay, the application is brought on the basis of the way in which the prosecution apparently responded to a notice of alibi dated the 2nd of February 2006, which appears to place it beyond doubt that as at the date ascribed to the

40

alleged offence. The defendant was in a secure ward at there which began with an attendance of an identified medical practitioner at Charters Towers).

50

The general understanding which the Court has of the circumstances is that the 16 year old complainant and her mother were known to the defendant and had frequently visited him at his property in the Charters Towers area, which offered 18072006 T17/KLW M/T TSVDC2/2006 (Robin DCJ) 2 ORDER 60

inducements to the complainant such as the possibility of	1
horse riding.
The offence is said to have happened on an occasion when the complainant was there on her own. I have the impression,

10

which might be unfair to bind any party to, that on that
occasion she had been picked up by the defendant from her
place in Townsville with the mother's knowledge and taken to

Charters Towers.

20

In the first instance the date ascribed to the charge was the month of July 2004. That was then expanded to cover also the month of August 2004 by amendment. At the committal the
police Prosecutor sought and was granted leave to amend the dates in the charge to place it on the specific date of the

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25th of June 2004. The explanation for that is that a
statement had been obtained by police when Mr Bridge, a young
man from Victoria who had befriended the complainant on the

internet.

40

50

3 ORDER 60

18072006 T18/MM M/T TSVDC2/2006 (Robin DCJ)

She had called him very soon after the alleged offence from	1
the defendant's premises. His statement dated the 10th of August 2005 speaks of telephone contact on the 25th of June 2004, which was suggested in the statement to be a significant date because it followed attendance at an associate's birthday

10

party where Mr Bridge was living in Victoria.

The appearance of things to the defence side is that the way in which the indictment ascribes a time to the offence charged deprives the defendant of the advantage of his alibi which

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runs into the first couple of days of July 2004. Mr Middleton of the notice of alibi.

accepts that that is not by any deliberate action of Mr

30

Nonetheless, Mr Middleton submits, and I will accept for the purposes of today, that it may still be open to proceed on the basis of the effect of what has happened and that it may be possible to describe that in terms of abuse of process.

40

I have the advantage of reasons of Judge McGill SC in successful. His Honour canvassed the authorities in a very thorough way, in particular Jacobs [1993] 2 Qd R at 541 (in which the dissenting judgment of Derrington J indicates that

50

there is rarely a clear answer in circumstances like the
present). He relied principally on a South Australian
decision, R v H (1995) 83 A Cr R 402.
18072006 D.1 T19/LKW M/T TSVDC2/2006 (Robin DCJ) 4 ORDER 60

1

A permanent stay was ordered by his Honour in respect of count 1, which charged rape. Here, the only charge faced by the defendant is a single count of rape. In ZSK there were five counts of indecent treatment of a child under 12. There were

10

two complainants who were twin sisters. The first statement
by the relevant complainant denied that what became the
relevant occasion there was anything in the nature of rape.
In a later statement, for the first time she suggested there
was.

20

There was in ZSK a notice of alibi which led to the

prosecution in the indictment charging a much longer period

than had previously been suggested as the time within which

the rape happened. His Honour was firmly of the view that the	30
purpose of provisions about alibi notices in section 590A of
the Criminal Code is to have the assertions of alibi tested,
rather than to allow the prosecution to amend charges in
respect of dates to circumvent an asserted alibi.	40
The authorities indicate that the date ascribed to such a
charge may not always be essential or an element, but it is
clear that a particular prosecution may be so conducted that
it becomes central. My reaction to the present circumstances	50
is that too much ought not to be placed at this stage on the
date Mr Bridge gave. It seems to me inherently possible, for

all his apparent certainty, which certainly characterised Mr
18072006 D.1 T19/LKW M/T TSVDC2/2006 (Robin DCJ) 5 ORDER 60

Middleton's cross-examination of committal, that he was	1
mistaken about the date - which it would seem he was asked to
supply as long as some 10 months after the event, or if the
Crown is right in now considering that the right date appears
to be August 2004, nine months or so afterwards. It might be	10
noted that Mr Bridge was uncertain of other details, such as
the identity of the person whose birthday was being
celebrated, relying on the passage of time.
20
There is plenty of room for investigation here as to how Mr
Bridge came up with the date. One may speculate, I suppose,
that it was someway suggested to him by police or even by the
complainant, but that is pure speculation. Mr Richards has
asked that the application not be determined today, having	30
foreshadowed yesterday that that is what he would do. He was
awaiting the return to duty of the police officer in charge of
the matter to obtain further information.
40
50

6 ORDER 60

18072006 T21/CAB M/T TSVDC2/2006 (Robin DCJ)

Information still sought, which Mr Middleton says his people	1
are after as well, relates to telephone records which are
taking some time to locate or become available. When they
are, it is to be hoped they provide reliable evidence of phone
calls made from the defendant's number to Mr Bridge's mobile	10
number. The two of them did not know each other and it would
be a reasonable inference that a call from the former number
to the latter might have been made by the complainant, as she
says. For the moment it is quite unknown whether any call or	20
calls will be identified any time in June 2004, August 2004 or
indeed any other time.
There is an interesting discrepancy between statements of the
complainant's mother, who, in her initial statement to police	30
dated 17 July 2005, which was tendered at the committal,
indicates in paragraph 20 a timeframe of "in the school
holidays in July or August 2005", whereas a later version of
the statement, which contains some additional material, deals	40
with the same topic in paragraph 22, in terms of "the school
holidays in June or July of 2004". It is some time since
there have been school holidays in the month of August in this
State. That observation is not intended to express any view
50
of what the lady was getting at.

7 ORDER 60

18072006 T21/CAB M/T TSVDC2/2006 (Robin DCJ)

At present it seems the prosecution case depends for its	1
success on devaluing the testimony of Mr Bridge. There are so
many possibilities for his being mistaken although he
expresses confidence about the date. The complainant, who
might be thought to have more reason to recall it, seems never	10
to have been confident in ascribing a time to the alleged
offence. Except on the day of the committal, the prosecution
has never presented a specific date as material. I think it
would be a wrong exercise of discretion to grant the permanent	20
stay he prayed for, even on the basis, which I think is
correct, that a "permanent stay" is reviewable by the Court if
circumstances change. Mr Middleton helpfully supplied a
reference to an unreported decision of Cox J in the Supreme
Court of South Australia of the 4th of March 1993,	30
DPP v Polyukhovich (No 2).
On analysis the situation is one in which, for a brief period,
there seemed to be a high degree of specificity about the	40
date, which may or may not be justified.
For all the defendant's disappointment in being deprived of
what seemed a devastating alibi, what is occurring is that,
50
for the moment, he is back in the difficult position of facing a charge framed in terms of a wide period of time. I am only
too aware that High Court decisions in particular pay specific

attention to the severe difficulty faced by defendants, the
18072006 T21/CAB M/T TSVDC2/2006 (Robin DCJ) 8 ORDER 60

more severe the longer the charge is placed in the past, in	1
coming up with an alibi to meet a charge when there is minimal
information given as to the date ascribed to it.
I am prepared to leave open the application for a stay. I	10
would not be prepared to accede to it today.
The expectation of the parties is that some resolution of
things will be arrived at when telephone records are
available. The Crown will be in trouble if these confirm what	20
Mr Bridge has been saying. It would be assisted if they suggest Mr Bridge is in error, perhaps.
Assuming the charge has to proceed there are two further
matters. One concerns the venue of the trial as opposed to	30
the venue for further interlocutory occasions like the present. It is clearly suitable to all parties to have Townsville as the venue for those.
The Magistrate, who has since retired, committed the defendant	40
to the Townsville District Court for trial when sitting in
Townsville. That occurred only because some confusion meant that a medical witness failed to turn up at the committal at Charters Towers. The proceeding had to be adjourned
unfinished to another day in Townsville to suit the general	50

convenience. There is nothing whatever to indicate that the
Magistrate gave any thought to whether the committal ought to
be to Townsville or to Charters Towers. In the ordinary
course it should have been to the latter.
18072006 T21/CAB M/T TSVDC2/2006 (Robin DCJ) 9 ORDER 60

1

Mr Middleton has said, and I accept, that it was through inattention or inadvertence on his part that he was not quickly on his feet to get the Magistrate to change the order. Mr Richards has indicated today that the Crown opposes any

10

order or direction for a trial in Charters Towers. In
fairness to the Crown it should be acknowledged that he has
been ambushed to an extent today and not had material to place
before the Court. I accept from him that the Crown's

witnesses may be from Townsville or further afield, and that

20

all Charters Towers has going for it is that it is the place
of the accused's residence and the place where the alleged

offence happened.

On ordinary principles that would indicate that the trial

30

ought to take place in Charters Towers, and I propose to order
that. No doubt that is reviewable. There was a similar
change after a good deal of attention, including at appellate
level, had been devoted to venue in the prosecution of Long

over the Childers' Backpackers Hostel arson trial.

40

The cross-examination of the complainant in advance of the trial is another respect in which the defendant ought to succeed in his application. She was not cross-examined at the committal, nor it seems was she even available to be

50

cross-examined.
It does not appear that Mr Middleton originally asked for that
opportunity. He explains that a record of rejection, when a
18072006 T22/DLD M/T TSVDC2/2006 (Robin DCJ) 10 ORDER 60

Magistrate is asked to permit cross-examination of youthful	1
complainants at committal, may have led him not to seek it on this occasion.
It has emerged this afternoon that the complainant's evidence

10

is about to be expanded in significant respects. It is not
necessarily the total picture, but Mr Richards says that she
will be asked at the trial to state her recollection of the
defendant's answers in a pretext phone call, which was

apparently made to him with a view to its being recorded by

20

police. Mr Richards says, and it seems common ground, that
her statements are clear on the relevant tape. The defendant
is for the most part inaudible. It is unknown whether any

process of enhancement will improve that situation.

30

If the Crown case is to be expanded in this way, the defendant ought to have the ordinary protection against surprise at the trial and the ordinary opportunity to prepare properly and effectively for trial by knowing what the evidence will be and, indeed, having some opportunity to challenge it in

40

advance.

There ought to be a voir dire and in my opinion ideally that ought to be in advance of the trial. The Court hears that the complainant will be giving her evidence in the ordinary way.

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There will not be recourse to the pre-recording possibilities
that are available to assist younger complainants in
particular in giving their evidence.
18072006 T22/DLD M/T TSVDC2/2006 (Robin DCJ) 11 ORDER 60

While in principle it might be open to the Court to require	1
some supplementary committal proceeding in the Magistrates possible and I do not see any difficulty in that voir dire taking place in this Court in any event, which is what I

10

envisage happening. Mr Richards supplied a helpful reference

to R v Basha, New South Wales CCA, 16.2.89; BC8902533.

...

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HIS HONOUR: I adjourn the application to a date to be fixed, if the defendant wants to renew the application for a stay in the light of further information that might become available

as foreshadowed.

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12 ORDER 60