R v B

[2009] QDC 59

[2009] QDC 59

DISTRICT COURT
CRIMINAL JURISDICTION

JUDGE BRABAZON QC

Indictment No 2527 of 2008
THE QUEEN
v.

B

BRISBANE

..DATE 03/03/2009

JUDGMENT

CATCHWORDS: Criminal law - Assaults - Sexual Offences - Rape and Sexual Assault - limitation of time for prosecution - stay of proceedings - delay - evidence

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HIS HONOUR: This is an application for the stay of a

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prosecution. The whole argument is about delay. It is a
prosecution for rape and the alleged assault of two

prostitutes 27 years ago.

The prosecution says that the women were held against their	10
will, tied up and raped in a Gold Coast unit. A complaint to
police was made the next morning on the 14th of December 1981.
The investigating officer went to the unit and arranged for photographs and fingerprints to be taken. Swabs were taken from the women's bodies. Each provided a statement - one was	20
13 pages in length.
Eleven years then passed before Mr B was identified as one of
five men in the unit that night. The unit had been rented
through a real estate agency and he said in a later record of	30
interview that he gave the usual name of B. His actual name was B and he lived in Tasmania. It is unknown for today's purposes if he left his address and, in any event, he was not found, for whatever reason.
40
Time passed. In 1992 Mr B was in Cairns and was apprehended
for some traffic offence. His fingerprints were taken and
they matched the fingerprints taken in the unit. His
photograph was taken. Then nothing happened for another eight
years.	50

In January 2000 police prepared a photoboard with his photograph and had it shown, separately of course, to the two women. That is, the photograph itself was about 10 years 1-2 JUDGMENT 60

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after the events in the unit and another eight years had

passed before the women saw the photoboards.

One woman failed to identify him, and the other did identify

him accurately. She had given a description that he was a	10
tall, dark and good-looking man with a tattoo on his arm. As it happens Mr B does have a tattoo on his arm. She described him as a good-looking man and that he was the ringleader.
With regard to her photoboard identification she said, "He
wasn't so handsome then though."	20
In describing the man in position number 7 on the photoboard
she said to the police officer at the time, "...I recognise
number 7, he's one of the men - he was the main man who tied
us up, took us off the street, raped us repeatedly from like	30
10 o'clock till 5 o'clock in the morning. He's older, but that's him."
In June and September 2000 the women gave additional
statements. It seems that by then it was realised that the	40
then passed. Finally Mr B was extradited from Tasmania. In
earlier ones had been lost with the police file. Seven years fingerprints and a blood sample were taken.
50

There is a collection of evidence which shows that Mr B did have contact with two prostitutes in unit 4 of the building at the Gold Coast and on the 13th of December 1981. First, he made admissions to that effect in his record of interview. He 1-3 JUDGMENT 60

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said he and four other men had consensual sex with the two
prostitutes and paid them money for it. Secondly, a Mercury
newspaper from Tasmania was in the unit when police went there
on the 14th of December. The newspaper was dated the 11th of

December. Mr B said that he was a reader of that paper.	10
In addition, it is his fingerprints that were on four objects
in unit 4. The police file has been lost and the
investigating officer is not now available as a witness, but
the fingerprints appear to be admissible under section 93 of	20
the Evidence Act.
Finally, he had been identified by the one woman mentioned
above. With regard to the passing of time it is inevitable
that such an identification was fragile, but it can be put in	30
the context of the other available evidence.
With regard to identification generally it should be noted that Mr B identified one of the women during his record of interview. It was submitted for him that that identification	40
should be excluded. That submission should be accepted. The prejudice to him far outweighs the probative value of the very hesitant identification that he did make.
It can be expected that the police photographs of the unit	50

might be proved by the two women. If not they would not be
admitted into evidence. The swabs from the women's bodies are
not now available, but it was accepted here that the results 1-4 JUDGMENT 60

sexual intercourse with the women. It will be appreciated	10
that at the time the DNA technology was not available.
It is now said on behalf of Mr B that he was disadvantaged
because the absence of the swabs mean that there cannot be any
current DNA testing, but since he has agreed with the police	20
that he had sexual intercourse with the two women it is difficult to see the relevance of that complaint.
There were four other men in the unit according to Mr B.
There is no evidence here that either the police or Mr B have	30
attempted to find those men. Mr B recalled at the time of his
record of interview the names of two of them as tradesmen
working with him on the same project at that time at the Gold
Coast. It is true that 27 years have passed, but it is not
unimaginable that one or both those men might still be working	40
at the Gold Coast. In any event, here there is no information about any inquiries of that kind.
The question is should the trial be stayed as requested on
behalf of Mr B. For the significant authorities in the High	50
CLR 378 and Jago and District Court of New South Wales 168

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of their examination could be proved at a trial.

Mr B's blood sample examination means that he is in a group
which is 12 per cent of the male population who could have had

Court of Australia, see the decisions of Walton v Gardiner 177 decisions of note in the Court of Appeal. The first in time 1-5 JUDGMENT 60

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is Johannsen and Chambers v the DPP No 218 and 219 of 1985,
judgment 30th April 1996. Then, of course there is the recent
decision of the Queen v Ferguson ex parte Attorney-General

[2008] QCA 227.

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It is pointed out in Ferguson that the jurisdiction of courts
to provide a stay of a criminal prosecution is exceptional.
It can be exercised only on the footing that the other tools
available to the judiciary to ensure that an accused is not

tried unfairly can be seen to be ineffective. It is a	20
residual and exceptional jurisdiction in the sense that it
falls to be exercised only in those cases where the other
legal safeguards of the right of the accused to a fair trial
are not apt to secure that right or in the circumstances
mentioned by President Fitzgerald in Johannsen and Chambers -	30
see paragraph 50.
The decision in Johannsen is significant because it is one of
the rare cases in which a stay of a criminal prosecution has
been ordered and in this State. The stay was agreed to by the	40
majority of three Judges in the Court of Appeal. The delay in that case had been 20 years.
Mr Justice Thomas, for example, mentioned the large number of
people who were either dead or missing by the time of the	50

proposed trial. He went on to say, "The Crown case at its
best must be regarded as a marginal circumstantial case
afflicted by numerous inconsistencies and competing
hypotheses...the factors that have been set out in the present 1-6 JUDGMENT 60

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case would make it almost impossible to ensure that a fair trial could now take place...I am of the view that further proceedings against Johannsen at this stage would be an abuse
of process...there should be a permanent stay pending

proceedings."	10
The President, Justice Fitzgerald, had pointed out that the
public has a superior interest in ensuring that the judicial
process is not abused and that accused persons' trials are
fair to them. He added a category of criminal prosecutions	20
which could be stayed as an abuse of process. He included
prosecutions which, by reason of delay or other fault on the
part of the prosecution, would, if successful, result in a
miscarriage of justice because of the significant possibility
that the convicted person is innocent. With respect to that	30
reference he referred to the decision of the High Court in Doney v The Queen (1990) 171 Commonwealth Law Reports 2007.
In this case there are real difficulties caused by delay.
There is an absent or dead investigating officer who could	40
perhaps have made some comment about the women's allegations
that a knife was produced at some time and stabbed into the
furniture in the unit. Along with the police officer the
original statements, including a 13 page statement, are
missing.	50

It is most unlikely, though not impossible, that the other four men would be identified. They are potential witnesses for the accused here in describing what happened in the unit 1-7 JUDGMENT 60

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that night. The question is whether or not the disadvantages can be dealt with by appropriate warnings or whether they are beyond being dealt with that way. That is are they in the
category of Johannsen's case?

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In my view they're not. While there are difficulties this is
not a circumstantial case. Rather it is a question of the
effect of two women who are available to give evidence and who
it is expected will say that Mr B, in effect, was one of the

men who treated them with violence and sexual assaults.	20
It seems to me that on balance it is a case where a warning
about the identification evidence and a longer warning about
the delay would be appropriate and sufficient to let the jury
understand the difficulties under which Mr B would be tried.	30
The application should be dismissed.
...

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