Linden v Foster

[2022] ACTMC 23

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Linden v Foster

Citation:

[2022] ACTMC 23

Hearing Date:

10 August 2022

Last submissions:

27 September 2022

DecisionDate:

21 October 2022

Before:

Magistrate Theakston

Decision:

The proceedings concerning the charges CC2021/7349, CC2021/9810, and CC2021/9811 are permanently stayed.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – pre-trial application – application for a permanent stay of the proceedings – act of indecency without consent – right to silence

Legislation Cited:

Police Complaints and Discipline Act 2016 (SA)

Cases Cited:

Canham v ACT Magistrates Court and Jabs [2014] ACTSC 14

Dupas v The Queen [2010] HCA 20; 241 CLR 237

R v Chute (No 4) [2018] ACTSC 259

R v Clarkson [1987] VR 962

Strickland v Commonwealth DPP [2018] HCA 53

The Queen v Edwards [2009] HCA 20

Walton v Cardiner [1993] HCA 77; 177 CLR 378

X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 570

Parties:

Nicole Linden (Informant)

Brett Foster (Defendant)

Representation:

Counsel

Ms B Morrisroe (Informant)

Mr T Jackson (Defendant)

Solicitors

ACT Director of Public Prosecutions (Informant))

Tindall Gask Bentley Lawyers (Defendant)

File Numbers:

CC2021/7349; CC2021/9810; CC2021/9811

MAGISTRATE THEAKSTON:

Introduction

1. A fundamental protection within our criminal justice system is that it is for the prosecution to prove the guilt of a defendant, and a defendant cannot be compelled to assist the prosecution to do so.  That is the basis of a defendant’s right to silence.

1. Here the defendant complains that, as he was compelled to answer questions about the allegation and his answers were provided to the complainant, he has lost that right to silence, and the proceedings should therefore be permanently stayed.

Background

1. In late 2019, various police officers travelled to Canberra to participate in a basketball tournament.  They included the complainant and the defendant who were members of South Australian Police. The complainant subsequently complained of being indecently assaulted by the defendant.  The allegation involved the defendant entering an ensuite, while the complainant was using the same to shower and then, while she attempted to cover herself with a towel, attempting to kiss her, grabbed her naked buttocks and holding her hand against his clothed crotch.

1. The complainant initially elected for the matter to be dealt with administratively under the South Australian Police legislative discipline arrangements.  As part of that process the defendant was directed and required to answer questions about the allegation.  He answered those questions, and two days later his answers were largely provided to the complainant.  The complainant then prepared a supplementary document in response to that information.

1. The compulsory interview was conducted under s 21(5) of the Police Complaints and Discipline Act 2016 (SA). That provision required the defendant to answer the questions put to him, on pain of being dealt with under that same Act for a breach of discipline. Sanctions following a finding of a breach of discipline included termination of the defendant’s appointment as a police officer. Incidentally, that provision – unlike the provisions discussed…