Males v Paparone
[1999] WASC 138
•20 AUGUST 1999
MALES -v- PAPARONE [1999] WASC 138
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 138 | |
| 20/08/1999 | |||
| Case No: | MCS:37/1999 | 16 JULY 1999 | |
| Coram: | WHITE J | 19/08/99 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Applications dismissed | ||
| PDF Version |
| Parties: | BARRY WILLIAM MALES JANET MAREE PAPARONE RICHARD PAPARONE |
Catchwords: | Criminal law and procedure Application for leave to commence private prosecution Criteria for the grant of leave discussed Leave refused |
Legislation: | Criminal Code |
Case References: | Walsh v Jewell, unreported; SCt of WA; Library No 980580; 2 October 1998 Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Gouldham v Sharrett [1966] WAR 129 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
JANET MAREE PAPARONE
- Respondent
- Applicant
AND
RICHARD PAPARONE
- Respondent
Catchwords:
Criminal law and procedure - Application for leave to commence private prosecution - Criteria for the grant of leave discussed - Leave refused
(Page 2)
Legislation:
Criminal Code
Result:
Applications dismissed
Representation:
MCS 37 of 1999
Counsel:
Applicant : In person
Respondent : Mr P E Harris
Solicitors:
Applicant : In person
Respondent : Ian R Farquhar & Co
MCS 38 of 1999
Counsel:
Applicant : In person
Respondent : Mr P E Harris
Solicitors:
Applicant : In person
Respondent : Ian R Farquhar & Co
Case(s) referred to in judgment(s):
Walsh v Jewell, unreported; SCt of WA; Library No 980580; 2 October 1998
(Page 3)
Case(s) also cited:
Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Gouldham v Sharrett [1966] WAR 129
(Page 4)
1 WHITE J: These are two unusual and related applications, brought by the applicant in person, for leave pursuant to s 720 of the Criminal Code to present an information against Janet Maree Paparone and Richard Paparone respectively, for an offence against s 320 of the Criminal Code.
2 The applicant wishes to bring a private prosecution against the respondents for the indictable offence of the sexual penetration of his daughter, Zara Melina Males ("Zara"), who was born on 8 March 1994. Zara is the daughter of the respondent Janet Maree Paparone and the grand-daughter of the respondent Richard Paparone, who is the father of Janet Maree Paparone.
3 The applicant alleges that Janet Maree Paparone procured Zara for the purpose of sexual penetration by Richard Paparone, sometime between 7.30pm on 29 October 1998 and 10am on 30 October 1998, in breach of s 320(1) and (3) of the Criminal Code.
4 The applicant relies upon the following evidence set out in annexures to his initial affidavit in support of the application:
"ANNEXURE
Particulars of alleged abuse
10.(1) That since on or about September 1997 when the child Zara was about 3 years and six months old. The mother encouraged and taught the child the art of masturbation despite the objections of the father and the mother told the child that this was ok to do in front of young male children but never to do this in front of adults.
(2) That on or about 6 September 1998 Janet Maree Paparone "the mother" assisted and allowed the pastor Ray Allen of a religious cult known as the Christian Outreach Centre at 42 Crompton Rd, Rockingham to remove the outer and underclothing of Zara Melina Males a 4 year old female "the child" and assault the child in the privacy of the vestry at the cults meeting place until the child pleaded in pain for forgiveness from God.
(a) The father attended the cults (sic) meetings on several occasions despite the mothers objections he only attended to see the type of people that were in the congregation.
(Page 5)
- He soon learned that the cult was openly inherent to pedophilia (sic) and child lovemaking he raised his objections to the mother without avail.
- (b) When the father had his first legal contact with the children on the 28 October 1998 the child Zara complained of the abuse as outlined in this paragraph 2. Based on Zara's complaint the father filed a notice of complaint with the Cockburn Police Station and preferred assault charges against the Pastor Ray Allen this was recorded in a receipt of complaint numbered RO; 291098 1358 83257. The father also filed a form 66 notice of abuse with the Court on 2 November 1998.
(c) On Sunday 20 December 1998 the police officer (regimental number 83257) telephoned me to advise that he had finally made contact with the mother who had been residing at a "NO FIXED ABODE" since the 29 October 1998. The purpose of his investigations was to establish whether the mother was equally concerned in the allegations made by the father and if so charges of assault would be laid against the pastor. The constable told the father that police could not pursue the matter any further as the mother had asked for the charges of complaint made against the pastor to be withdrawn and the police officer told by the mother; 'I condoned the actions of the pastor as the child deserved God's punishment'.
(3) That between August 1998 and late October 1998 the mother and a friend named Mandy Zviek 'Mandy' of 7 Elliot Close Kwinana WA allowed and encouraged the six year old son of Mandy named 'Robbie' on numerous occasions during a regular weekly church cults (sic) playgroup to sexually interfere with the child Zara in digital and the male child penis penetration of the child Zara this occurring without the father's knowledge.
(a) It should be noted that the religious cult encourages sexual contact at infancy and at junior levels. The father being away at sea for long periods of time had no knowledge or would condone such immoral behaviour
(Page 6)
- and always insisted on the mother to break ties with the cult.
- (4) That on the 29 October 1998 between about 7.30pm but before 10am on the 30 October 1998 the mother assisted and allowed the child's maternal grandfather Richard Paparone at his residence at 87 Hampton Road Fremantle to digitally penetrate the child's vagina in order to place blame on the father Barry William Males of the sexual assault both the mother and the grandfather attending the Fremantle CIB office at about 10am on the 30 October 1998 to make a false statement that was confirmed by the child who was under grave and extreme pressure of further abuse and assault if she did not comply with the prompted dialogue from the mother and the grandfather.
(5) That on 30 October 1998 at about 2pm the mother, grandfather and the children attended the Child Sexual Assault unit at Princess Margaret Hospital where 'the children' ZARA MELINA MALES and SHARNAH MAREE MALES were examined by a Doctor Elizabeth Green albeit the examination being illegally conducted and constituting an assault on the children by the doctor who knowingly examined the children without the consent or the presence of the father knowing the children to be subject to Family Court orders made on the 27th October 1998 in order 2 of the orders the father having joint responsibility of the children.
(a) It should be noted that the appointment was made three (3) months prior and at that time the father had not and had been constantly denied contact with the children by the mother and the Paparone family.
(b) It should also be noted that the doctor is not impartial in her views as expressed in her report which is opinionated it relies on hearsay of the mother and on allegations which are orchestrated by the mother and the grandfather who had no business attending other then to see that his sexual digital penetration on Zara was successful. While Doctor Green may be a qualified practitioner in minor general medicine I question her ability in child psychiatry and certainly her knowledge of adult psychiatry and/or
(Page 7)
- family related issues is limited certainly in her report where she believes anything that the child the mother and grandfather tell her and makes comments of this in a factual nature in her report without limiting or expressing a doubt as to the mother's objectives. Doctor Green's outdated knowledge of Family Law extends to the repealed sections of that law in the terminology used EG; Custody, Access, Custodial parent etc.
- (c) The father expects Family and Children's Services to have the Doctor charged with common assault on the children whom she examined illegally without consent of both parents.
(d) The father intends to claim an undisclosed amount of damages from PMH and Dr.Green in a Supreme Court Action unless prior settlement is made or offered by the assailants.
(e) The father voluntarily attended the Police Child Abuse Unit on 25 November 1998 and was questioned in a video taped interview by a multitude of officers headed by Senior Detective Mark Howles resulting in the father being cleared of any wrongdoing.
(f) It should be noted that police have not questioned the mother or the grandfather in relation to the offences they have committed on the child.
(6) The father filed a form 66 Notice of child and/or risk of child abuse at the Court on 2 November 1998. The complaint made has to date gone unheeded by the Department of Family and children's (sic) Services albeit that a legal clerk of the Department a Ms.Tonia Lovett responded in a letter dated 19th November 1998 to the acting solicitor of the mother Mr.Whittle of Patterson Dowding. Ms.Lovett made a firm direction therein for the mother to deny contact between the children and the father the direction being based on hearsay evidence of the mother by the solicitor. The father has since filed a form 49 Contravention of child orders on Ms.Lovett for aiding and abetting with the mother to deny the father his
(Page 8)
- lawful right of contact with the children according to the orders of the Court.
- (a) It must be noted that the mother has admitted in her affidavit of reply to the form 66 filed by the father that she punishes (assaults) the children with a wooden spoon in particular the child Zara with whom she clashes in a sick personality difference and openly hates the child for her devoted love of the father whom she looks for in protection against the mother.
11. Particulars of alleged risk of abuse
(1) The father is extremely concerned for the safety and welfare of the children whom he believes continue to suffer physical assaults and sexual abuse at the hands of the mother and persons whom she associates with and the grandfather.
(2) While the orders of the Court dated 27 October 1998 continue to be willfully (sic) contravened by the mother the further orders made on the 16 and 17 of December 1998 for telephone contact to occur with the father have also been breached and at the time of preparing this notice while it was agreed that the telephone contact between the father and the children should occur in privacy and uninterrupted without being limited to duration in time the following has occurred;
(a) The conversation was made from a speaker phone with the mother and her undesirable associates who are not party to the Court proceedings continually interrupting the conversation and telling the children what and what not to say.
(b) Terminating the conversation when the children expressed their safety concerns to the father.
(c) Terminating the phone call when the father asked the children as to their state of health and/or their safety and/or their whereabouts.
(Page 9)
- (d) Openly abusing and punishing the children when the father asked the children to pick up the handset to enable the conversation to continue in private.
The father currently has a (sic) application before the Court and listed for 5 January 1999 in which he seeks to have the children placed in temporary foster care under the auspices of Family and Children's Services which is supported by the child's representative Mr.John Athanasiou until the hearing of the final orders by the Court in a form 7 application in which the father seeks permanent residency of the children in his care and the sole responsibility for the long term development of the children and/or the following occurs first;
The father is and has been searching for his children since 30 October 1997 and at the time of preparing this notice continues his search, if and when he locates the children he intends to take the children into his residency ending the miserable existence they have had to endure at the hands of their mother her derelict associates and the grandfather and ultimately ensuring their safety, health, wellbeing and happiness. The father claims immunity from any wrongdoing by his intended action pursuant to section 112AC (3) (a) and (b) of the Family Law Act 1975."
5 In his letter to the Manager, Assignment Section, Legal Aid dated 7 May 1999, a copy of which is also annexed to that affidavit, the applicant says:
"RE: - YOUR REF: 99P02335 KK:SHS
I refer to your correspondence of the 29th ultimo, I reply herewith to your request to provide the further information sought.
Your paragraphs 1 and 2 are relative to each other and basically require the same information in my answers, I provide you herewith with the most pressing details relative to my application before you:
In about February 1998 1 separated from my de-facto Janet Maree Paparone, (the mother) the relationship had produced two female children namely; Zara Melina Males DOB 8/3/94 and Sharnah Maree Males DOB 23/11/95.
(Page 10)
- I was afforded little contact with my children whom were regarded by the Paparone Family as common Paparone property.
I commenced proceedings in an application to the Family Court in September 1998 to have liberal contact with my children and on the 27th October 1998 the matter came on for hearing, after the usual counselling sessions as directed by the Magistrate on that day the parties agreed to regular contact occurring despite the mother and her Italian family begrudgingly consenting but in any case resulting in consent orders being made.
I was given additional contact in an addendum of orders which commenced the following day the 28th October 1998 for a two day period, I returned the children to the mother on the evening of the 29th October.
My formal contact was to recommence the following day 30 October at 6pm, however unbeknown to me in a pre-meditated and orchestrated move the mother and the children had been picked up by her father Richard Paparone after I had returned the children on the 29th and moved to the Paparone's home at Fremantle.
In the afternoon of the 30th October 1998 I was contacted by the mother's solicitor who said that the contact that evening would not be allowed to proceed as Paparone had advised him that the mother and himself had been to the Sexual Abuse Unit at Princess Margaret Hospital (PMH) where I had been accused by a Dr Elizabeth Green that I had sexually penetrated my child Zara sometime during my two day prior contact and that the doctor would be preparing a report in this regard, the police had been notified and I would expect to be interviewed.
I was of course to say the least devastated by the allegation that was totally untrue, I had a complete alibi in that during my entire time of contact with my children I had been in the company of (a) my father, (b) relatives and friends.
To clear the allegations, I attended out of my own free will the office of the Police Department's Sexual Abuse Unit and was questioned in the presence of at least eight officers by a Senior Detective Mark Howles in a video taped interview of which I later obtained a copy.
(Page 11)
- I was completely exonerated and cleared by Police of any wrong doing, later finding that they never interviewed the mother or her father in relation to the written report from Dr.Green and her finding of sexual abuse on the child that clearly implicated the mother and her father.
The possibility of the mother and her father committing this crime for the purpose of blaming me and their orchestrated aim to forever deny me their begrudged contact with my children (the Paparone' s common property) during and after serving a possible prison sentence for a crime I did not commit was never considered by Dr.Green during the examination of the children or Police after my interview.
Any form of complaint by me in relation to the foregoing to Police was either ignored or later conveniently deleted from their computer, I know that the Paparone Family have a corrupt pull with Police at Fremantle, even my complaint to the Police Internal investigation (sic) Branch was later mysteriously deleted from the Police computer.
I was determined to bring the criminal sexual perpetrators to justice and commenced my own investigations assisted by a legal knowledgeable friend who assisted me in the preparation of my Family Court documents and applications which task he still performs as of today, he is also knowledgeable and learned in psychological human behaviour patterns as well an expert in criminal investigation procedures.
In the further proceedings in the Family Court despite my clearance by Police I was convicted by that Court including the separate appointed Legal Aid funded child representative without trial or natural justice and my contact with my children was reduced to supervised contact only, against advise I accepted the ordered supervised contact now realizing that in doing so I may have inadvertently conceded guilt and that seemed to be the aim of the Court and the corrupt child representative who has close ties with the equally corrupt Paparone family and I will seek to have him dismissed for gross professional misconduct in my further application in the Family Court.
(Page 12)
- However my investigation was made easier by the filing of various affidavit documents of the mother in the Family Court in which she admits to regular severe physical punishment of the children with blunt instruments, her admitting to the fact that she was determined to deny my contact and importantly in this matter the fact that she and her father spend the night of the 29 October 1998 with the children at his home alone (Paparone is divorced from his wife) and willfully with premeditation the mother allowed her father to penetrate my daughter Zara's vagina and then blame me for this crime.
As in all criminal cases the perpetrators do or say something that leads to their conviction as has occurred in this case in the following:
On the morning of the 30th October 1998 at about 9.30am the mother, the children and her father Paparone attend the Fremantle CIB office at Henderson Street where they have a pre arranged appointment with Senior Constable Ms. Phillipa Stewart who takes the oral complaint of the mother that; the child Zara has been sexually penetrated/abused by the father (myself) during the contact period of the previous day.
Constable Stewart an associate of the Paparone's, despite her lack of any qualification in child psychology interviews the child alone (albeit this is illegal and against the laws of child welfare) and asks the child to confirm what mummy has said is true that, "daddy has touched me in funny places" (bearing in mind at this point the child is tired, lacking sleep and under threat of "the wooden spoon" from the mother, the child being told to say what has been indoctrinated by the mother what to say the mother in prior times admitting to this.
The mother has also admitted in a sworn affidavit that she moved out of her home after me returning the children to deliberately deny my contact.
Constable Stewart tells the mother to deny all contact with the father, this is an issue that is later dealt with in the Family Court and for which Ms Stewart was found to have a case to answer in relation to her aiding and abetting with the mother to deny myself my lawful contact thus contravening Court child orders.
(Page 13)
- The mother, the children and Paparone then attend PMH Sexual abuse (sic) Unit at about 1 pm in an appointment that was made during the time that the children had contact with me.
What the mother did not know was, that I had taken the children myself to a doctor in Attadale only an hour before returning them to her on the 29th, for a medical check up because of my concern after the children complained to me in front of a witness that their mother and a pastor of a religious cult to which the mother belongs were constantly ill treating them, particularly the child Zara.
I filed a complaint against the pastor at the Cockburn Police Station that same day and received a Report Offence (R/O) number which I still have, some weeks later a Police Officer phoned me and said that he was closing my complaint as he had interviewed the mother who told the officer that the Pastor had her consent to punish the child and she did not consider it an assault on the child.
Upon reading the medical report from Dr Green it was blatantly clear that the mother and her father are the perpetrators, the report states that Dr Green found 'two 4mm slit like fresh superficial abrasions at the 3 and 9 o'clock at the longitudinal level in the sleeve like hymen', 'they were likely to be less than a few days old and more than a few hours old', Dr Green further makes reference to 'likely digital penetration'.
The child was seen between 13.45 hours and 15.20 hours, at 14.55 hours I was contacted by the solicitor of the mother who had been advised by Paparone that contact was cancelled, this was 25 minutes before the examination was completed, question; how could Paparone know the result of the examination before its completion and know the contents of the written report which was not completed until at least seven days later and Dr Green had not verbally disclosed her findings to the mother or Paparone? Answer: Because the mother and Paparone knew what the examination would reveal, Paparone himself inflicting the abrasions in the hymen by digital penetration sometime after 7.30pm of the previous evening.
The motives of the mother and her father are clearly established by their actions and the mother's admittance that she was
(Page 14)
- permanently going to deny my lawful contact with my children despite two days earlier agreeing to contact orders being made by consent.
Court orders would not have been allowed by the judiciary if the mother had indicated at the time of the proceedings that she was fearful of the children's welfare if left alone in my presence, no such concern was raised at the time.
I have also established and know that Paparone is capable of committing this crime, firstly by the comments made by the mother during our relationship indicating that her sister and herself may have suffered sexual abuse by her father in their childhood, this leading to the divorce from his wife.
It is also of some concern that Paparone in his late forties resides with a teenage girl in a defacto relationship for the past 3 years whom I guess to be about 16/17 years of age at this time.
Because of the inaction of Police despite the clear evidence available to them, I have taken the step as a very concerned parent to lay civil charges against the mother for procuring and her father for the sexual penetration of my child Zara pursuant to section 320 of the Criminal Code.
The interim proceeding was heard in the Fremantle Court of Petty Sessions on the 19th April ultimo before Mr Clive Brown SM he accepted the validity and seriousness of the charges and ordered me to seek leave in the Supreme Court for the charges to proceed to a higher Court, placing the defendants on remand, allowing them to be released on bail.
I, the plaintiff appeared in person at this hearing, the mother was represented by her counsel while Paparone appeared for himself.
I am not legally qualified to proceed in this matter unless I have a solicitor to represent me in the seemingly complex procedures of a higher Court, unlike my own representation in the Family Court were the litigation's (sic) in law are simplified to enable personal appearance.
(Page 15)
- It is more than important for me to seek your assistance as it concerns the lives of my very young daughters who are at great risk of further abuse by the mother and her father, the mother has and is obviously suffering from a mental sickness as she attends regular psychiatry sessions at Relationship Australia.
You refer to various duty lawyer instruction sheets that are attached to my application, these were written by the interviewing solicitor at Fremantle who helped me to complete my application and was obviously supportive of my request for legal assistance saying that, I certainly needed assistance and commenting that my case was one in a million.
In answer to your question as to what matters I require assistance for:
(1) The completion of the appropriate documents seeking leave in the Supreme Court for the matter to be dealt with by a higher Court as instructed by the magistrate in the Court of Petty Sessions before the next hearing in that Court listed for the 21st June 1999.
(2) Legal representation in the ensuing proceedings to ensure the conviction of the mother and her father for the crime they have committed upon my innocent child Zara.
I have nominated Mr Robert Frichot to represent me and my children in this litigation whom is considered a highly experienced criminal lawyer.
Should you require any further information please contact me on 9314 5116 or by fax on 9314 5117.
I look forward to your early reply."
6 In her replying affidavit, the respondent Janet Maree Paparone deposes to the "drawn out" proceedings which have been brought against her by the applicant in the Family Court and to the report of Dr Elizabeth Green who examined the child Zara. In her report, Dr Green summarised her findings as follows:
"In summary Zara is a 4 1/2 year old girl who has made a disclosure to me today with reference to likely digital penetration. She has implicated two people, her father, Barry
(Page 16)
- Males and another person by the name of Robbie. Zara has also been interviewed by the Fremantle Police. Genital examination findings are abnormal. They are consistent with genital trauma of an acute nature. Two fresh superficial abrasions were noted. On there (sic) appearance I thought they were most likely to be less than a few days old and more than a few hours old. Family and Childrens (sic) Services and the police continue to be involved."
7 Ms Paparone says that she reported the allegations of sexual abuse to Constable Phillipa Stewart of the Child Abuse Unit at the Fremantle Police Station and that she was interviewed by the police on two separate occasions and that Zara was interviewed by the police on three separate occasions. No charges have been laid.
8 In November 1998, the applicant's application that his two children be removed from the custody of Ms Paparone and placed in his care was refused by Mr C J Judges SM in the Family Court. In January 1999, the disputes between the applicant and Ms Paparone again came before Mr C J Judges SM in the Family Court. In his reasons for judgment, the learned Magistrate described the issues as follows:
"Essentially, the dispute between the parties relates to reciprocal allegations that each party has been guilty of either physical or sexual abuse of the children or either of them or has allowed such abuse to take place at the hands of others. The primary allegation that is being investigated relates to possible sexual molestation of the child Zara. Verbal disclosures made by the child have implicated the Applicant father and are made more serious by the finding of Dr Elizabeth Green that there may be physical evidence of inappropriate conduct by some person involving the child."
9 The learned Magistrate went on to say:
"The Court is aware that the Applicant father is acutely distressed at the prospect of supervised contact. The Court readily understands his feelings in this regard. . . .Since contact was denied he has instituted not less than 9 separate Form 49 Applications against various people. The Court understands that he has another bundle of applications ready to file. The cost so far has already been extremely high. The matter must be brought to a conclusion quickly."
(Page 17)
10 The report of Dr Green establishes, I consider, that Zara has probably been the victim of sexual abuse. It does not establish the identity of the offender. The "evidence" relied upon by the applicant is not, in my judgment, such as would suffice to prove the guilt of either respondent, at best it might raise a suspicion that one or other of both of the respondents had committed the offence, but it could not establish which of them, if either, had in fact done so.
11 The complaints have been investigated and the police have concluded that there is insufficient evidence to warrant the laying of charges against either of the respondents or the applicant himself.
12 I have mentioned that the applications are of an unusual nature. In Walsh v Jewell, unreported; SCt of WA; Library No 980580; 2 October 1998, Murray J said, at 6:
"The effect of this procedure then is to remove the process of prosecution of an indictable offence from the procedural and substantive constraints of the administrative process of committal for trial by a Court of Petty Sessions. It is understandable then that not only is leave required to be obtained from this Court, but also that, as the cases amply demonstrate, the process of private prosecution upon indictment should be regarded as being one to be permitted only in exceptional circumstances. In Ex p Marsh[1966] Qd R 357 at 365, Wanstall J described the procedure as 'unusual and extraordinary'. In Gouldham v Sharrett [1966] WAR 129 at 137 Wolff CJ said that 'private prosecutions have become practically otiose'.
The history of such prosecutions and the legislative enactments affecting the process from time to time in various jurisdictions are usefully discussed in both those cases by the judges I have mentioned. I need not repeat the discussion here.
It is sufficient to say that consideration of the ordinary process of official prosecution, and the concern that persons should only be exposed to private prosecution before a jury, with all the trauma and expense which that may involve, in exceptional circumstances where the process is required to be permitted in the interests of justice going beyond the particular interests of the prosecutor, have led the courts to take a highly restrictive approach to the grant of leave. Such an approach recognises
(Page 18)
- that in considering the grant or refusal of leave, the court is concerned not with a private action for damages or compensation, but with criminal proceedings which are directed to a finding of guilt of a serious offence and punishment by the State by fine or imprisonment in the ordinary way.
In Ex p Marsh the view expressed by Wanstall J was very much concerned with the fact that the grant of leave to prosecute before a jury by private information departed from the ordinary procedure to which I have referred above. As his Honour said at 365:
'It is upon this consideration that I think the exercise of my discretion should be circumscribed. Unless the case presents some unusual, if not extraordinary, feature, I should not countenance a procedure which will eliminate all the traditional safeguards inherent in the usual course, the most obvious of which are the requirements of the finding of a prima facie case by a magistrate after an investigation in which the accused may cross-examine freely, and of the finding by the Attorney-General of a true bill on the committal evidence; and the assistance in preparing his defence which the accused obtains from the committal proceedings.'
In giving the judgment of the Full Court in Gouldham v Sharrett Wolff CJ at 137-8 concluded that in considering whether to grant leave under s720, the court should be guided by the following considerations:
'(1) Is the type of offence of such grave character that the determination whether to prosecute should be left to the Attorney-General: eg prosecutions for such offences as non-capital homicide, perjury, and so on?
(2) Is the admissible evidence in support of the prosecution inherently credible and sufficient to found a prima facie case?
(3) If there have been no proceedings for committal is there any good reason why the usual proceedings for committal before justices should not be resorted to?
(4) Has the accused already been committed for trial by a petty sessional court?
(Page 19)
- (5) Has the Attorney-General entered a nolle prosequi or intimated that he will not file a bill?
(6) Is the administration of justice likely to be impaired by reason of some discreditable motive on the part of the prosecutor?
(7) Is the situation such that if leave is refused a grave injustice will be done to the applicant or somebody standing in close relationship to him?' "
13 I shall address each of those questions hereunder.
14 1. Is the type of offence of such grave character that the determination whether to prosecute should be left to the Attorney-General: eg prosecutions for such offences as non-capital homicide, perjury, and so on?
15 It is apparent that the type of offence the subject of the proposed prosecution is indeed of an extremely grave nature - the abuse of children is rightly regarded with abhorrence by the community and, following conviction, the penalties imposed are substantial. I am of the opinion that the first question should be answered in the affirmative - the offence in question is of so grave a nature that its prosecution should be left to the Attorney-General.
16 (2) Is the admissible evidence in support of the prosecution inherently credible and sufficient to found a prima facie case?
17 I have expressed the view above that, while the evidence supports the allegation that the child has been abused, it is, in my opinion, inadequate to establish a prima facie case against either of the proposed respondents. The evidence could not establish which of the respondents, if either of them, was responsible for the abuse of the child.
18 (3) If there have been no proceedings for committal is there any good reason why the usual proceedings for committal before justices should not be resorted to?
19 In my opinion, in view of the state of the evidence, this question does not call for an answer.
20 (4) Has the accused already been committed for trial by a petty sessional court?
(Page 20)
21 The respondents have not been committed for trial at all.
22 (5) Has the Attorney-General entered a nolle prosequi or intimated that he will not file a bill?
23 The Attorney-General has not entered a nolle prosequi or intimated that he will not file a bill, but the Police have informed the applicant that they will not present charges against the respondents.
24 (6) Is the administration of justice likely to be impaired by reason of some discreditable motive on the part of the prosecutor?
25 In my opinion, the applicant appears to be genuinely, and understandably, concerned for the welfare of his child and I am not aware of any discreditable motive on his part.
26 (7) Is the situation such that if leave is refused a grave injustice will be done to the applicant or somebody standing in close relationship to him?"
27 Because the evidence is insufficient to establish guilt on the part of either respondent, I conclude that the refusal of leave would not do injustice either to the applicant or to the child. To permit the applicant to embark upon a hopeless prosecution would, on the other hand, cause him an injustice as well as occasioning injustice to the respondents and, particularly if she is required to give evidence, to the child herself.
28 For the aforegoing reasons, I shall refuse the application for leave to present a private prosecution against the respondents. The applications in each case are accordingly dismissed.
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