R v B, EJ - [2011] SADC 163

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v B, EJ
[2011] SADC 163
Reasons for Ruling of His Honour Judge Clayton
14 October 2011
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Permanent stay of criminal proceedings sought by applicant on the basis that the continuation of the proceedings would give rise to an abuse of process.
HELD: Stay refused.
Criminal Law Consolidation Act 1935 Part 8A; Evidence Act 1929 s 34CB, s 34K, referred to.
Question of Law Reserved (No ! of 1997) (1997) SASR 251; R v WRC (2003) 143 A Crim R 503; R v Marshall [2011] SADC 132; Jago v The District Court of New South Wales and Others (1989) 168 CLR 23; Connelly v Director of Public Prosecutions [1964] AC 1254; Duncombe-Wall v Police (1998) 197 LSJS 398; Commonwealth Service Delivery Agency v Bourke (1999) 75 SASR 299; Salmat Document Management Solutions Pty Ltd & Ors v The Queen (2006) 199 FLR 46; Williams & Ors v Spautz (1992) 174 CLR 509; Police v Pakrou [2008] SASC 364; R v Liddy (No 4) [2001] SASC 152, considered.

R v B, EJ
[2011] SADC 163

The accused is charged with two counts of indecent assault. The particulars of each count are in similar terms. It is alleged that between 1 April 1979 and 31 October 1979 the accused indecently assaulted the complainant. One count relates to an allegation that the accused grabbed the complainant by the penis and dragged him into a shower cubicle before showering him with hot and cold water alternately. The other count alleges that the accused inserted a cane into the anus of the complainant.
The accused was born in 1931 and is now 80 years of age. The complainant was born in 1967 and is now 44 years of age. The alleged offending was about 32 years ago.
Reports of psychologists establish that the accused is not fit to stand trial. Both parties acknowledge that is the case. Accordingly the matter is to be determined pursuant to Part 8A of the Criminal Law Consolidation Act 1935.
The accused has elected for trial of the objective elements by judge alone.
The accused has made application for a permanent stay of proceedings. The application is based upon several grounds. One is that because of his unfitness to stand trial the accused will be unable to advance evidence that might cast doubt upon or positively disprove the allegations of the complainant. Two other grounds depend upon the fact that certain evidence has become unavailable. A person whom the complainant asserts was an eyewitness to the alleged assault has died. I will refer to that person as M. Finally the records of the South Australian Police relating to an attendance by M at the Glenelg Police Station shortly after an alleged assault of M by the accused have been lost or destroyed. Whether that assault was the same incident as the one relied upon by the complainant is likely to be an issue.
Ms Fuller, who appeared for the accused, argued that it is the combination of those matters which justify the exceptional step of staying the proceedings.
The parties acknowledge that the court does have a discretion to stay the proceedings permanently notwithstanding the fact that the prosecution is governed by Part 8A of the Criminal Law Consolidation Act.
I am satisfied that the long delay in commencing these proceedings together with the mental condition of the accused is likely to give rise to forensic prejudice to the accused. However that combination of events is not unusual in cases involving allegations of historical sex offending and it is not by itself a sufficient ground for a permanent stay of proceedings. Such difficulties are matters which the court must take into account. Evidence Act 1929 s 34CB.
The complainant was under the care of the state from about the age of 11 until the age of 18. In 1979 he was placed in an institution known as Slade Cottage where six or seven youths were housed at any one time. Other residents at the relevant time included M and another youth whom I will refer to as P. The accused was an employee at Slade Cottage.
The charges arise out of a statement by the complainant as to an occasion when the complainant and M had been returned to Slade Cottage after absconding. The complainant said that the accused made them strip naked, asked them questions and when they did not answer or told lies the accused at first caned them across the hand and later made them bend over and caned their backsides. The complainant asserts that the accused became angry and with one of his hands grabbed the complainant’s penis, pulled him into a shower cubicle, turned the shower on and kept asking questions with the shower alternating between hot and cold. The complainant said that the accused did the same to M, also grabbing M on his penis. That complaint gives rise to the first of the two counts.
The second count arises out of an allegation by the complainant that on the same occasion the accused forced a cane into his anus.
The complainant cannot say whether the accused did anything to M apart from hitting him on the hand and back side and grabbing him by his penis.
The statement of the complainant asserts that either that night, the next day, or the day after M ran away from Slade Cottage and spoke to the police. The complainant said that as a consequence he had to go to the police station because the police wanted to ask him questions. The accused drove him to the police station. He stated that he did not tell the police anything because he was "shit scared" and the accused had told him not to say anything to the police if they asked him questions. The complainant stated that the accused took him back to Slade Cottage but he cannot remember what happened to M. He cannot remember if M ever went back to Slade Cottage.
The complainant stated that when they got back to Slade Cottage the accused asked him what he had told police and made threats to the complainant that if he said anything about what had happened they would be punished.
M was interviewed by the police on 5 July 2008 and provided a statement dated 14 July 2008. He remembered being in Slade Cottage and remembered repeatedly running away with P, the other youth. M said the accused became more and more angry with them and that he would never forget the accused. He described the canings becoming more frequent and more violent.
M gave evidence of one particular occasion when he had run away with P and the accused was particularly angry and caned them vigorously. M said that his hands were black and blue and swollen to twice their size. He remembered the accused using an axe to cut a branch from an oleander tree which the accused then used to beat M on his bare back side and the backs of his legs. M described the pain as excruciating and said that the accused hit him about eight to 10 times. He thought that the accused was out of control and that the punishment was well over the top.
M said that the accused then put him in his room naked, took away his clothes, nailed a piece of wood across the door and tied the handle so that M could not get out. He described himself as a prisoner in his own room and said that he was only allowed out to go to the toilet and do chores. He wore government issued pyjamas. M said that punishment lasted about two weeks.
On the day he was let out M ran away to his cousin's house. When his cousin saw the state of his hands she made him go to the Glenelg Police Station to tell them what had happened. A police officer took Polaroid pictures of his hands and a short statement. His cousin told him that he was not to go back to Slade Cottage, but after she had gone home the police took him straight back.
As the police were speaking to the accused M ran away again. He slept rough around the city for a couple of days before police caught him and sent him back to Slade Cottage. The accused was not there when M returned but when M did see the accused he administered another caning. M said that he was taken to the bathroom where he was made to drop his trousers and he was caned again with the same oleander branch.
In his statement M said that the events which preceded M going to the Glenelg Police Station involved M & P, not the complainant. Additionally, in his statement M did not refer to either he or the complainant being dragged by the penis into a shower or to a cane being inserted into the anus of the complainant.
M left Slade Cottage in around 1980. He recalled the complainant. Importantly in his statement M said "I don't remember anything specific happening with (the complainant), he was just one of the lads there at the same time as I was".
M met up with the complainant again in 1993 or 1994 but they never discussed their time at Slade Cottage.
Following an application pursuant to Rule 20 M was cross-examined by counsel for the accused in committal proceedings. There is a transcript of his evidence which was given on 11 November 2009. M confirmed his written statement that he could not remember anything specific happening with the complainant during the time that he was in Slade Cottage, although M did remember an occasion when he and the complainant were given the stick on their hands by the accused in his office.
M also gave evidence of attending at the Glenelg Police Station at the request of his cousin when his hands were so black and blue that they were distorted. He could only recall attending at the police station on one occasion. In his cross-examination he could not recall whether it was the caning that he received when the complainant was also present that led to him going to the Glenelg Police Station.
M has died and is no longer available to give evidence.
On 20 August 1979 the accused wrote to Mr Belchev, the Regional Director, advising that he had spoken with M and the complainant on 17 August 1979. On that day the complainant and M had both been taken to court as a result of their offending. The accused reported to Mr Belchev that after appearing before the Magistrate both boys returned to Slade Cottage and they were "very happy". That evening they were taken to the city on an outing and they both absconded, although they did return to Slade Cottage several hours later. The following day they absconded again. The accused wrote that the mothers of both boys gave the accused permission to use the stick. He wrote that he gave both boys "4 handers" and also gave M three or four strokes across the behind.
In the letter to Mr Belchev the accused advised that two girls, one being a relative of M, arrived at Slade Cottage and asked to take him on an outing. The accused agreed. He wrote "It now appears that they encouraged (M) to complain about getting the stick. They took him to the Glenelg Police Station".
If that note is correct it would suggest that M went to the Glenelg Police Station, on that occasion at least, following an incident involving M and the complainant, not an incident involving M & P. That contradicts what M told the police in July 2008.
The accused also advised Mr Belchev that two police officers had called on him and "they voiced the opinion that the boy had been encouraged to make a complaint, and now he did not want to return to Slade". The accused rang a mother who said that she would verify that she had given the accused permission to use the stick. Finally the accused said "In closing this report I wish to say that I still feel that (M) will settle down at Slade, and that he has been used in an attempt to cause trouble". Who it was who had used M in an attempt to ‘cause trouble’ and the nature of the trouble was not revealed.
I have referred to the letter because it suggests that M went to the Glenelg Police Station following a different incident from the one referred in the statements of M in July 2008.
Whilst Part 8A provides a code for dealing with accused persons who are mentally incompetent such codes are not exclusive and they do not exclude the jurisdiction of the court to control its own processes, in particular an abuse of process. (Question of Law Reserved (No ! of 1997) (1997) SASR 251, R v WRC (2003) 143 A Crim R 503 and the decision of His Honour Judge Nicholson in R v Marshall [2011] SADC 132 para 22)
The prosecutor has advised the Court that the Crown would be happy for the evidence of M at the committal to be admitted into evidence pursuant to s 34K of the Evidence Act. While the evidence of M might be interpreted as being of assistance to the defence in that it may contradicts or at least casts doubt on the evidence of the complainant, the defence does not accept the accuracy of the evidence of M.
When considering an application to permanently stay criminal proceedings a useful starting point is Jago v The District Court of New South Wales and Others (1989) 168 CLR 23. Mason CJ confirmed that courts have an inherent power to prevent abuses of their process.[1] He referred to decisions which "have endorsed the proposition that, at least in cases of undue delay, the courts possess power to stay criminal proceedings in order to prevent "injustice" to the accused".[2] The dominant consideration is to prevent unfairness to the accused.[3] Mason CJ said:
In the safeguarding of the interests of the accused in the manner I have described, the touchstone in every case is fairness…
[1]    p 25.
[2]    p 26.
[3]    Connelly v Director of Public Prosecutions [1964] AC 1254 at p 1347.
and,
The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial… At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused’s right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused’s responsibility for asserting his rights and, of course, the prejudice suffered by the accused… In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare…To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial "of such a nature that nothing the trial judge can do in the conduct of the trial can relieve against its unfair consequences"…[4]
[4] pp 33 - 34.
In the present case there is not just the delay of over 30 years. There is also the deterioration in the mental health of the accused and the fact that potential evidence has been lost.
In Duncombe-Wall v Police [5] Lander J stayed a prosecution in a case where, notwithstanding a request from the appellant for its preservation, the police had destroyed the tape of a 000 call which might have corroborated the contested evidence of the appellant. The police were criticised for the failure to preserve that evidence.
[5] (1998) 197 LSJS 398.
In Commonwealth Service Delivery Agency v Bourke [6] Wicks J upheld the decision of a Magistrate to permanently stay proceedings where social security forms had been destroyed before the prosecution was commenced as part of the routine culling in accordance with the Archives Act 1983. His Honour found that a trial would be unfair because the only evidence which was capable of corroborating the appellant had been destroyed.
[6] (1999) 75 SASR 299, 304.
Ms Fuller referred to the remarks of McKechnie J in Salmat Document Management Solutions Pty Ltd & Ors v The Queen (2006) 199 FLR 46 where His Honour said:
…The fact that a case against an accused must be proved to the criminal standard has never prevented an accused from establishing facts that cast doubt on the prosecution case. If, through destruction of documents, or some other sufficient cause, an accused is actively prevented from either mounting an affirmative case, or from casting doubt on the prosecution case, then it may be that to allow a trial to continue would be an affront to justice.[7]
[7] At para 138.
Later His Honour said:
In my opinion, a judge does not have to resolve the issue of missing documents on the basis that the applicant must demonstrate that the missing documents, coupled with delay, might credibly form the basis of a line of defence or a line of attack of the prosecution's case even though I think the applicants have demonstrated that…[8]
[8] At para 150.
Ms Fuller accepted that the accused bears an evidential onus to show that the missing documents/evidence might have been used for a credible forensic purpose.[9]
[9] Accused’s Outline of Argument para 25.
The prosecution case depends entirely upon the evidence of the complainant. If there is any doubt as to the evidence of the complainant the accused must be acquitted. The accused will wish to assemble as much evidence as possible to cast doubt upon the evidence of the complainant.
The evidence of the complainant is that the accused took him and M into a shower block after the two of them had returned from absconding. He alleges that the accused caned both him and M on the hands and on their backsides. He alleges that the accused grabbed both of them by the penis and that the accused inserted a cane into the anus of the complainant. The complainant has stated that M was "right there watching this and he copped pretty much the same". (my underlining)[10]
[10] Declaration dated 6 April 2008 p 8.
The significance of the evidence of M is that while the complainant states that M was a victim of the same physical and sexual assaults M has not corroborated the complainant's account in any way. In his evidence at the committal M could only recall going to the Glenelg Police Station on one occasion which was at a time when his hands were black and blue from a caning. That was following a caning of M & P and did not involve the accused. The accused relies upon the statement of M that he had no recollection of anything specific involving the complainant happening while he was at Slade Cottage.
Ironically it is the defence case that M was mistaken when he said that it was M and P who were caned by the accused before M went to the Glenelg Police Station and that, consistent with the complainant's account, it was in fact M and the complainant who were caned by the accused on the occasion on which the complainant claims that he and M were sexually assaulted as well as being caned. It is argued that would be consistent with the report to the Glenelg Police Station.[11]
[11] Accused’s Outline of Argument para 43.
The accused argues that if the incident relied upon by the complainant is the same incident as that related by M, (albeit in the company of the complainant rather than P), it follows that the complainant's allegation that in addition to being caned he and M were sexually assaulted by the accused could not be accepted by the court.
It is suggested that the defence is prejudiced by its inability to cross‑examine M to negate any suggestion by the Crown that the incident referred to by the complainant and the incident referred to by M were separate events.
The accused relies upon inconsistencies between the statements of M to the police and his evidence at the committal.[12] Ms Fuller has argued that committal proceedings are not the forum for the defence case to be put or for all relevant matters to be canvassed. She argued that "although it is clear from M's evidence that it does not relate any occasion where he witnessed sexual abuse perpetrated upon the complainant and he was himself subjected to the same abuse, the opportunity to thoroughly cross-examine M to establish that the occasion of the caning in the complainant's presence was the same occasion of corporal punishment as alleged by the complainant has been lost".
[12] `Accused’s Outline of Argument para 46.

There is already an obvious inconsistency between M and the complainant in so far as M never referred to either of them being dragged into the shower by the penis or having a cane inserted in their anus.
The accused argues that the admission of the evidence of M pursuant to s 34K of the Evidence Act, without the opportunity to cross examine M, would be unfair to the accused. Ms Fuller argued that if he consented to the tender of the committal evidence for the purpose of placing some exculpatory evidence before the court, the accused would suffer a forensic disadvantage resulting from the admission into evidence of inconsistent accounts and the court would be unable to assess or weigh the evidence or make positive findings regarding which account should be preferred. She argued that such a forensic disadvantage would not arise if M was alive because the committal evidence would not be before the court.[13] She also argued that the unfairness to the accused would be compounded because the prosecution could contend that the occasion of which M spoke was some occasion other than that alleged by the complainant.[14]
[13] Accused’s Outline of Argument para 49.
[14] Accused’s Outline of Argument para 50.
Ms Fuller argued that the unfairness is further compounded by the destruction of the SA police records. It is suggested that the records of the police may have provided the accused with the opportunity to support his version of events. In particular, the records may have demonstrated that, contrary to the allegations of the complainant, M never made any suggestion in his complaint that he and the complainant had been sexually assaulted by the accused.[15]
[15] Accused’s Outline of Argument para 52.
Ms Fuller also argued that the SA Police records would have provided the accused with an opportunity to support his version of the circumstances in which he came to speak with the police and the nature of the evidence that he provided.[16]
[16] Accused’s Outline of Argument para 53.
Ms Fuller submitted that because of the destruction of documents and the death of M and as a consequence of the prosecution being governed by Part 8A the accused is actively prevented from mounting an affirmative case and from casting doubt on the prosecution case to an extent that for a trial to continue would be an affront to justice.[17] She submitted that had M been alive his evidence would have been a critical part of the defence case. She said that his evidence would have materially assisted and established more than a reasonable doubt about the guilt of the accused.[18]
[17] T7.
[18] T7.
If M gave credible evidence that the situation described by the complainant never occurred that would provide a basis for doubting the evidence of the complainant and finding that the objective elements of the offences had not been made out. It could be argued that the statement which M gave to the police and the cross-examination of M at the committal do go a long way towards that in any event.
Ms Fuller referred to the possibility that the prosecution may contend that the incident that M spoke about in his evidence at committal and in his written statement is something different from the event relied upon by complainant. The Crown does challenge the defence hypothesis that there was only one incident. Ms Fuller argued that M could have been cross-examined and the accused could have demonstrated that the only occasion of which the complainant was speaking was one where M was present and no sexual abuse took place.[19]
[19] T15.
Ms Fuller submitted that her client did not simply have to establish that M does not corroborate the complainant but that he is required to establish that there was one incident only during which there was corporal punishment but no sexual abuse. Ms Fuller gave other examples of the way in which her client might be prejudiced by the inability to cross-examine M. She suggested that if the committal evidence and the declarations were tendered the court would not, in the absence of cross examination of M, be able to resolve any inconsistencies between the evidence of M and the evidence of the accused.[20]
[20] T27.
That submission overlooks the fact that the role of the defence is not to resolve inconsistencies but is to establish a reasonable doubt about the evidence of the complainant.
The prosecutor identified the claimed prejudice to the accused as having lost the opportunity to put a theory which is actually untenable.[21]
[21] T32.
As to the missing documents the prosecutor pointed out that no document has been identified which would have had a significant impact on the fairness of the trial. He pointed out that the defence argument is "purely speculative" and said "the defence speculate that there is going to be something in the statement that was made by M to the police that would help them in establishing that (the complainant's) account was untrue. That is drawing a long bow, with respect, it doesn't follow.[22]
[22] T34.
As I have already mentioned the discretion to grant a stay will only be exercised in rare or exceptional circumstances. The accused has the onus of demonstrating circumstances which a stay. Williams & Ors v Spautz (1992) 174 CLR 509, 529.
By itself delay does not make a trial unfair. In R v Liddy (No 4) [2001] SASC 152 Nyland J said that the accused was:[23]
…undoubtedly prejudiced in the preparation of his defence as a result of the long delay in these issues being brought to the attention of the authorities. The problems encountered by him in checking records and the like are the inevitable result of that delay. There would not, however, appear to be anything exceptional or unusual about that.
[23] At para 20.
What the court must do is to examine whether there are any circumstances apart from the delay itself which might make a trial unfair. Ms Fuller has argued that the lost evidence would be prejudicial to the accused and make the trial unfair.
Ultimately the task of the court is to balance any unfairness to the accused against the public interest.
Unlike Duncombe-Wall, in the present case there is no criticism of the prosecution arising out of the way in which the police records were destroyed. The prosecutor submitted that the accused must demonstrate real and substantive unfairness or prejudice and that presumptive prejudice is insufficient. He referred to Police v Pakrou [2008] SASC 364.
In Jago Brennan J observed:
Obstacles in the way of a fair trial are often encountered in administering criminal justice… or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the courts control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.[24]
[24] p 47.
In this case, which will be a trial of the objective elements of the offence by judge alone, the judge will need to be mindful of and make allowance for any circumstances which may give rise to unfairness. Evidence Act s 34CB.
So far as the police records are concerned there is no information as to what the records may have revealed or whether the records would have supported the defence case. The prosecutor submitted that presumptive prejudice is insufficient and there is no power to grant a stay on the ground of presumptive prejudice. (Jago per Mason CJ at 33, Deane J at 62, Toohey J at 71-72 and Gaudron J at 78).
The unavailability of M to give evidence is of more consequence. On the evidence of the complainant M was an eyewitness to the alleged offending. He would have been a most important witness at the trial. However any unfairness arising out of his unavailability is ameliorated, at least in part, by the possibility of his evidence at the committal and his signed statements being admitted pursuant to s 34K of the Evidence Act. M does not support the evidence of the complainant and it would have been preferable if he could have given evidence at the trial; but his statement to the police and evidence at the committal are available and they do by themselves provide reason to doubt the complainant.
The prosecutor argued that the applicant had an unfettered opportunity to cross-examine M in the committal proceedings. I accept the defence contention that the cross-examination at committal proceedings, which may be no more than fishing to ascertain what a witness might say, is quite different from cross‑examination at a trial where the accused might wish to put a positive case to the witness. The accused did not have any obligation to put his case to M at the committal.
Ms Fuller argued that the admission into evidence of the transcript of the committal proceedings and the written statements does not resolve the unfairness to the accused because the accused has been deprived of the opportunity to cross‑examine M. She argued that cross examination may have revealed other matters that would support the defence case. However, no other matters have been identified and that submission does not rise above speculation.
What is important in the present case is that on its face the evidence which M did give at the committal does not support the complainant and therefore casts doubt on the evidence of the complainant. Whether anything more could have been established by cross-examination at the trial is speculative.
It could be argued that the suggestion that the accused has been prejudiced by reason of his inability to establish that there was only one incident is more imagined than real because it might be implied from the evidence of M and his statement that the occasion of which he gave evidence was the only occasion.
If the transcript of evidence and the written statements of M were not available the situation may have been different; but the fact that some evidence which is inconsistent with the complainant’s evidence is available. M has already been cross‑examined, albeit in a limited way. It has not been established that further cross-examination of M would have made any difference. No fresh line of cross-examination has been identified.
The end result is that it is speculative as to whether the loss of the police file has prejudiced the defence case and any unfairness resulting from the death of M has been ameliorated by the availability of the signed statement and the evidence of M at the committal. No other unfairness as a consequence of the delay has been identified, although it is well understood that with delays such as the one which has occurred in this case it is impossible to ever know in what ways an accused may have been prejudiced.
After taking everything into account I have come to the conclusion that the matters which are relied upon by the accused in support of the application do not establish actual prejudice such as to make a trial unfair. I accept the Crown’s submission that the prejudice relied upon by the accused is speculative rather than real.
The application for a stay of proceedings is refused.