R v B, GN - [2014] SASCFC 109

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Permission to Appeal)
R v B, GN
[2014] SASCFC 109
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Blue)
27 October 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF TRIAL JUDGE
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
Appeal against conviction.
Following a trial by Judge alone, the defendant was found guilty of one count of persistent sexual exploitation of a child. The complainant gave evidence that between 1985 and 1988, when she was aged six to eight years, the defendant regularly rubbed his penis against her vagina and entered her bedroom at night and touched her in her vagina area.
Before the trial, a Judge refused an application by the defendant for a permanent stay of the information on the basis that a nolle prosequi had been entered by the Crown in 1990 relating to charges alleging the same or essentially the same offences.
The defendant appeals against his conviction on the grounds that:
(a)   the Judge erred in declining to stay the information permanently as an abuse of process;
(b) the trial Judge failed to give adequate reasons for rejecting the possibility that the complainant’s recollections of the offending were the product of dreams or suggestions by her mother; and
(c) the trial Judge failed to give due regard to the forensic disadvantage to the defendant arising from delay.
Held by Blue J (Kourakis CJ and Vanstone J agreeing) dismissing the appeal:
1.   As to the first ground:
(a) the fact that a nolle prosequi was entered in respect of a proceeding on an earlier information for the same offences is one factor to be taken into account in determining whether the institution and prosecution of a new proceeding comprises an abuse of process which warrants the grant of a permanent stay. There is no new or special category of abuse of process arising merely from the earlier entry of a nolle prosequi in a previous proceeding (at [39]);
(b) the Judge took into account the entry of the nolle prosequi in the earlier proceeding and the subsequent institution of fresh proceedings and the circumstances in which they occurred in reaching his conclusion that there was no abuse of process warranting the grant of a permanent stay (at [49]).
2.   As to the second ground:
(a) there was no need for the trial Judge to address the possibility that the sexual offending was merely the subject of the complainant's dreams because this possibility was not put to the trial Judge in closing submissions or to the complainant in cross-examination (at [52]);
(b) the possibility that the complainant's recollection of the sexual offending was the result of suggestion by her mother was so unlikely that it was not essential the trial Judge address it in his reasons for judgment in circumstances in which it had not been clearly put to K in cross-examination (at [58-61]).
3. As to the third ground, the trial Judge gave appropriate weight to the forensic disadvantage suffered by the defendant as a result of delay and in particular his inability to cross-examine prosecution witnesses effectively (at [71]).
Criminal Law Consolidation Act 1935 (SA) ss 50(1), 56(1), 348, 352(1)(c), referred to.
House v The King (1936) 55 CLR 499; Jago v District Court of New South Wales (1989) 168 CLR 23; R v Jacobi [2012] SASCFC 115, (2012) 114 SASR 227 ; Walton v Gardiner [1993] HCA 77, (1993) 177 CLR 378; Williams v Spautz [1992] HCA 34, (1992) 174 CLR 509, applied.
R v Doyle [1988] 2 Qd R 434, (1987) 30 A Crim R 379; R v Glencross [1999] SASC 563, (1999) 206 LSJS 158; R v Jell; Ex parte Attorney–General [1991] 1 Qd R 48, (1990) 46 A Crim R 261; R v Swingler [1996] 1 VR 257, (1995) 80 A Crim R 471; Rona v District Court of South Australia (1995) 63 SASR 223, discussed.
Question of Law Reserved on Acquittal (No 3 of 1995) (1996) 66 SASR 450; R v Garrett (1988) 49 SASR 435; R v H, GJ [2014] SASCFC 34, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"nolle prosequi, abuse of process, permanent stay, failure to give adequate reasons, failure to give adequate weight, forensic disadvantage, delay"

R v B, GN
[2014] SASCFC 109
Court of Criminal Appeal: Kourakis CJ, Vanstone and Blue JJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Blue J.
VANSTONE J: I agree.
BLUE J:
This is an appeal, by permission, against conviction.
In May 2012, the defendant was arraigned in the District Court on an information charging one count of persistent sexual exploitation of a child[1] and an alternative count of aggravated indecent assault.[2]
[1] Criminal Law Consolidation Act 1935 (SA) s 50(1).
[2] Criminal Law Consolidation Act 1935 (SA) s 56(1).
In February 2013, a Judge refused an application by the defendant for a permanent stay of the information.[3]
[3] [2013] SADC 21.
In May 2014, after a trial by Judge alone, the trial Judge convicted the defendant on the first count of persistent sexual exploitation of a child.[4]
[4] [2014] SADC 80.
The defendant appeals against his conviction on three grounds:
1.the Judge who determined the application for a permanent stay erred in declining to stay the information permanently as an abuse of process;[5]
2.the trial Judge failed to give adequate reasons for rejecting the possibility that the complainant’s recollections of the offending were the product of dreams or suggestions by her mother;[6] and
3.the trial Judge failed to give due regard to the forensic disadvantage to the defendant arising from delay.[7]
[5]    Ground 3.
[6]    Ground 1.
[7]    Ground 2.
Background
The complainant K was born in April 1979. In May 1985, K’s mother J met the defendant and in July or August 1985 he moved into their house at Ethelton. In January 1986, when K was six years old, J and the defendant were married and the three of them went on a honeymoon to Tasmania.
The defendant remained living in the house with J and K until March 1988. On the night of 23 March 1988, J went into K’s bedroom and saw the defendant next to K’s bed. J gave evidence at trial that she saw the defendant’s hand under the sheet; whereas the defendant gave evidence that he was pulling up the sheet and tucking K in. The following morning, there was a discussion between J and K during which K said that the defendant had been touching her private parts. J changed the locks to the house and took K to a doctor and then to the police. When the defendant returned home that night, J told him to leave.
In April 1988, the defendant was interviewed by the police. He denied the allegations. He was arrested and charged with several counts of unlawful sexual intercourse with K between 1985 and 1988.[8] A committal hearing at the Port Adelaide Magistrates Court took place in December 1988 and continued in June 1989. Evidence was given by J, a police officer who had interviewed K and a doctor who had examined K. The defendant also gave evidence. An information was laid in the Supreme Court for the August 1989 sessions. The matter was listed for trial to commence on 31 January 1990.
[8] The information was not tendered on the application for a stay or at the trial in the 2012 proceedings.
In about July 1989, the prosecution attempted to proof K, but J informed them that K, who was by then 10 years old, was distressed after the previous proofing session, did not want to see the defendant again and did not want to give evidence. In January 1990, J informed the prosecution that K did not want to be proofed again or give evidence. On 31 January 1990, a nolle prosequi was entered by the Crown as a result.
In July 2008, K attended at a police station reporting that she had been sexually assaulted by the defendant between 1985 and 1988. She told the police that previous charges have been laid against the defendant but they had not proceeded because she had been too scared to give evidence. After an investigation by the police, the defendant was charged with persistent sexual exploitation and a new information was laid in the District Court for the May 2012 sessions.
In November 2012, the defendant applied for a permanent stay of the proceeding as an abuse of process. The application was supported by an affidavit of the defendant and his current solicitor Ms Wilkinson. In February 2013, the application was refused by a Judge of the District Court.
The defendant having elected for trial by Judge alone, the trial proceeded on 12, 13 and 14 June 2013. K and J, together with their former neighbour Ms Kelly, were called as witnesses by the prosecution. The defendant gave evidence.
K gave evidence of an incident (an uncharged act) that occurred during the honeymoon in Tasmania in January 1986. She said that, when J was out of the motel room, the defendant who was not wearing any clothes on the bottom took off her bottoms, laid her on top of him, and rubbed his penis up and down against her vagina area. K gave evidence that this had occurred at Ethelton before the honeymoon and continued after the honeymoon on a regular, weekly or fortnightly, basis until March 1988. K’s evidence was that this occurred in the defendant’s bedroom when her mother was away from the house working, undertaking a course or playing netball.
K gave evidence of regular incidents that occurred in her own bedroom when her mother was at home. She said that the defendant came into her room at night and touched her in her vagina area, sometimes penetrating her vagina with his finger. She recalled this occurring the night before her mother spoke to her in the morning but did not recall her mother coming in on that night or switching on the light.
K gave evidence that she recalled a discussion with her mother one morning on the topic whether something had been happening between the defendant and her. She did not recall the precise conversation, but recalled her mother asking her words to the effect whether the defendant had been doing anything wrong or whether the defendant had been coming into her room. She said that she told her mother that the defendant came into her room at night time. She thought her mother asked her whether he touched her on her private parts and she said yes.
J gave evidence that, on occasions when she found that the defendant had been out of bed for a prolonged time, she got out of bed to look for him and found him in K’s room. During the last few months that he was living at Ethelton, this occurred approximately once a week. On those occasions, when she entered K’s room, the defendant was walking away from K’s bed.
J gave evidence that she observed on occasions when the defendant was playing with K on his lap that he had half an erection. She also said that on one occasion she saw the defendant outside looking through the bathroom window at K and her friend in the bath.
J gave evidence that one night around 23 March 1988 when she noticed that the defendant had been out of bed for a prolonged time, she crept into K’s room and suddenly turned on the light. She saw that the defendant had his hand under the sheet and quickly pulled his hand back. She asked him what he was doing and he said he was just checking to see if K was alright. She asked him why and he said that K had had a nightmare. J suggested that he might have been doing something else, but the defendant maintained that he was checking on K’s welfare. J said that K appeared to be asleep. They returned to bed, but J did not sleep until about 5 am pondering the situation.
J gave evidence that in the morning she asked K what was going on between her and the defendant and K told her that the defendant had been touching her. K told her that the defendant had been touching her private or vagina and she didn’t like it. J took K to a doctor who suggested that J take K to the police station to give a statement, which they did that day.
J gave evidence that, when the defendant came home that evening, she said that he had been touching K sexually and he had to leave. He replied saying words to the effect “what am I supposed to do when she comes in bed, lying next to me and wants her neck rubbed, you know, when she climbs on top of me and starts rubbing herself, what am I supposed to do?” J gave evidence that the defendant said that he just couldn’t help himself.
The defendant gave evidence. He denied that he ever rubbed his body against K when they were partially or fully naked, touched her in the area of the vagina or did anything sexually inappropriate.
The defendant gave evidence that, on two occasions when J was away at night, K came into the bedroom in which he slept and climbed into bed. Nothing inappropriate occurred. He said that K had nightmares, particularly leading up to access visits to her father. He or J went in to check that K was alright. If she was awake, he brought her a glass of milk and helped to calm her down, straightened out her bed and tucked her in. If she was asleep, he straightened out her bed and tucked her in.
The defendant gave evidence that K became upset when her father came to pick her up for access weekends. He said that K’s father’s new partner telephoned him one day and said that K and S had witnessed K’s father masturbating in front of them.
The defendant gave evidence about the night before J asked him to leave the house. He said that he was only tucking K in when J came into the room, she asked “is everything okay?” and he said “yes, I’m just finishing tucking her in”. J switched off the light and went back to bed. The following evening, J accused him of interfering with K and he denied it.
Application for permanent stay
The defendant contends that the Judge who heard and determined the application for a permanent stay erred in refusing the stay. The defendant accepts that the decision whether to grant a stay is discretionary and the exercise of the discretion is only to be disturbed if the exercise of the discretion miscarried because the Judge proceeded on a wrong principle, misunderstood the facts, took into account an irrelevant factor or failed to take into account a relevant factor or made a decision which no reasonable judge could have made.[9]
[9] House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.
The defendant contends that the Judge proceeded on a wrong principle in declining to recognise a new and specific category of abuse of process being the institution of new charges after a nolle prosequi had been entered at the commencement of the trial of earlier charges alleging the same or essentially the same offences. In the alternative, the defendant contends that the Judge erred in failing to take into account a relevant factor being the institution of new charges after a nolle prosequi had been entered at the commencement of the trial of earlier charges alleging the same or essentially the same offences.
A new category – nolle prosequi?
The Judge described the first contention by the defendant in the following terms at [56]:
The first is that, in the development of the common law surrounding these matters considered in the light of the changed legislative landscape that now exists, a novel question of principle may arise concerning the use of a nolle prosequi and the later presentation of an information charging the same or similar matters. In the application of principle (so the argument proceeds), there is now a need to establish a new category of case requiring the identification and assessment of other discretionary considerations based upon the use of the nolle prosequi.
The Judge analysed various authorities and ultimately rejected this contention. The Judge said at [223] to [227]:
Having regard to these authorities, the view that I have formed is that despite all of the submissions put to me by Mr Algie SC, no novel principle concerning the use of a nolle prosequi and the later presentation of an information charging the same or similar offences is established by them.
In my view, the authorities discussed form part of the relevant common law developed surrounding those cases where a nolle prosequi is entered, an attempt is made by the DPP to recommence a prosecution based upon a new information and an application for a stay is heard and determined.
As I have been at pains to point out, all of these cases turn on their peculiar facts but the decisions relating to them derive from the application of well settled principles to the relevant facts of each matter.
In my opinion, there is no basis to establish some novel principle merely because the matter involves the entry of a nolle prosequi in 1988 and that fresh charges were brought on the same matters in 2011, based, in part, upon legislation passed recently that deliberately has retrospective operation.
Nor do I think that in the application of principle and in the exercise of discretion, there is any need to establish some new category of case (i.e. that there be a further overlay of other discretionary considerations based upon the use of a nolle prosequi in the past and the bringing of a fresh information in the future), where, as here, a nolle prosequi was entered in 1988 and there was a presentation of a fresh information in respect of the same matters in 2011.
(Emphasis added)
It is well established that the Court has jurisdiction to permanently stay proceedings which are an abuse of process. The categories of abuse of process are not closed. One category is whether prosecution of the proceeding is unfair to the accused. One reason why the prosecution may be unfair to the accused is where there has been a long delay between the alleged commission of the offence and the trial and the accused has suffered prejudice due to that delay. Ultimately, in exercising a discretion whether to grant a permanent stay, a court engages in a balancing exercise between fairness to the accused and the legitimate public interest in the continuation of the proceedings of those guilty of crime. Where there is prejudice to the accused due to delay, it is relevant to take into account the reasons for it including the extent of any fault on the part of the prosecution resulting in the delay.
Applications for permanent stay of a new proceeding as an abuse of process when a nolle prosequi was entered in an earlier proceeding have been considered by intermediate appellate courts on several occasions.
In R v Doyle,[10] after the jury was empanelled, the trial Judge ruled that confessions critical to the Crown case were involuntary. The prosecutor requested that the indictment be returned to counsel (the first step in Queensland for entry of a nolle prosequi), which the trial Judge did but the trial Judge also ordered that further proceedings be stayed. A new indictment charging the same counts was later presented and the trial Judge refused an application for a stay of proceedings as an abuse of process. The Queensland Court of Criminal Appeal held that there is power to stay a new proceeding instituted after a nolle prosequi was entered in respect of a previous proceeding if the institution comprises an abuse of process, but the mere fact that a new proceeding is instituted for the same offences does not constitute an abuse of process. Connolly J (Vasta J agreeing) said:
... The notion that the appellant had in effect had his trial is unsustainable, as his Honour held. There had been no trials on the merits. The trial, which had commenced with his arraignment on the first indictment had, as to the remaining ten counts, been discontinued. …
...
As to the third point, the reference to the same charges being typed on another piece of paper is colourful, but without substance. It really amounts to saying that it must always be vexatious and oppressive to present a fresh indictment where a nolle prosequi has been entered on a former indictment. This simply is not the law.
The fourth point states a proposition to which no exception can be taken but no prejudice to the appellant was pointed to save the obvious fact that he has been unable to avoid conviction in reliance on what has proved to be an erroneous rulings.[11]
[10] [1988] 2 Qd R 434, (1987) 30 A Crim R 379.
[11] (1987) 30 A Crim R 379 at 382-383.

In R v Jell; Ex parte Attorney–General,[12] the trial Judge ruled at the end of the prosecution case that there was no case to answer. The prosecutor sought to enter a nolle prosequi, but the trial Judge refused to return the indictment for that purpose and directed the jury to return not guilty verdicts. The Attorney-General referred a question of law to the Court of Criminal Appeal whether the trial Judge was entitled to refuse to allow the prosecutor to enter a nolle prosequi. The Queensland Court of Criminal Appeal held that the Court had power to control its own proceedings to prevent abuse of process and treated the question as if a new indictment had been presented after entry of a nolle prosequi and a stay had been sought. Thomas J (Macrossan CJ and Lee J relevantly agreeing) said:
It is the positive consequence of entering a nolle prosequi in the given circumstances which is the basis of a possible undue oppression of the accused person… We are concerned with the potential exercise of the power for the purpose of preserving another opportunity to convict the accused person by presenting another case against him on another occasion.
Examples may be postulated. The right might be asserted when a case has gone badly for the prosecution and it is conceivable that it might turn out better on a re-run…
Mr Sturgess submitted that it was premature for the trial judge to use the power of stay at any time before the prosecution actually launched further proceedings. He submitted that the appropriateness of exercising the power should only be considered upon the commencement of the further proceeding. I do not think that the power is so limited. If the entry of the nolle is plainly a further step in the revival of a prosecution whose continuation must be an abuse of process, the court’s staying power is immediately activated. …
...
The entry of a nolle prosequi at final stages of a trial is effectively an abortion of that trial and a unilateral preservation of rights by one party – the Crown. The accused has been in the jury’s charge, but is no longer. … The power of the Court to prevent this happening when it is plainly intended as a means of enlivening an almost dead prosecution, or where the further prosecution must be regarded as an oppressive abuse, is simply an aspect of the court’s duty to control its own process and to ensure that the accused receives a fair trial.[13]
[12] [1991] 1 Qd R 48, (1990) 46 A Crim R 261.
[13] (1990) 46 A Crim R 261 at 274-275.
In Rona v District Court of South Australia,[14] the defendant was charged with four counts of false pretences. At pre-trial hearings, the prosecution stated and reiterated that no further charges would be laid, including for fraudulent conversion. The prosecution did not comply with directions for filing witness statements and seven days before trial a fresh information was laid alleging four counts of fraudulent conversion. The trial Judge granted a stay of the fourth count because the prosecution had acted contrary to directions given in the implementation of the Court’s caseflow management system. This Court allowed an appeal by the Director against the grant of the stay. King CJ (Mohr J agreeing) said:
[14] (1995) 63 SASR 223.
The suggestion was put in argument that the trial on that date could have been aborted by the DPP exercising his right to enter a nolle prosequi on the false pretences Information leaving him free to proceed subsequently on the fraudulent conversion Information. It is not necessary to decide the question in this case as a nolle prosequi was not entered but I would not wish to be taken to accede to the proposition that the entry of a nolle prosequi necessarily and in all circumstances deprives the court of the power to control the proceedings before it by empanelling a jury and taking a verdict.
…
… In R v Jell; Ex parte Attorney-General, the Full Supreme Court held that a trial judge has a discretion to refuse to accept a nolle prosequi if to do so would be an abuse of process.
If the reasoning and decision in Jell are sound, and they certainly accord with my sense of justice, there is no reason why the same should not apply where the trial has not begun but the date for trial has been fixed in accordance with the regular procedures of the court. When the accused appears for trial on that date, the interests of justice may demand that, if the prosecution does not wish to proceed and there is no valid reason why the accused should remain exposed to prosecution in respect of the alleged conduct, there be a verdict of not guilty by direction. There may of course be valid reasons why a nolle prosequi should be accepted even during trial. A vital witness may be incapacitated or there may be suspected witness tampering causing a vital witness to change his story. Other examples can readily be imagined. …
Even if a nolle prosequi were accepted in such circumstances, there would remain in the court the power to stay any future prosecution in respect of the same conduct, if that prosecution amounted to an abuse of process. …
... It is apparent that [the trial Judge] approached the matter on the basis of punishing the DPP for his departure from his assurances, regarding the staying of one count only as an appropriate sanction. I think that that approach discloses an error of law. The power is to prevent proceedings which amount to an abuse of process, not punish non-compliance with case management procedures and directions. … the power to stay must be used for the purpose of prevention of the abuse, not merely as a punishment for non-compliance.
...
As the application will, in my judgement, now have to be determined on its merits in the District Court, it is important to make the point that the existence of the power to stay resulting from the abuse of process, does not imply that the power must be exercised. A judgement has to be made as to what the interest of justice require. There must be a balancing process taking into account the interests of fairness to the accused in having the basis upon which his trial was to take place adhered to, the integrity of the case management system and all that it implies for the efficient and just disposal of criminal business and “the community’s expectation that persons who are charged with offences are properly brought to trial”.[15]
(Citations omitted)
[15] Ibid at 228-230.
In R v Swingler,[16] the defendant was charged in 1987 with seven sexual offences against P in 1971 when P was 12 years old. In September 1987, the Director entered a nolle prosequi. Some years later, the Director laid a fresh information charging the same offences. The trial Judge refused an application for a permanent stay of the proceedings as an abuse of process. The Victorian Court of Appeal dismissed the defendant’s appeal against his subsequent conviction of those offences. Winneke P, Callaway JA and Crockett AJA said:
There had been an application before the trial judge permanently to stay the proceedings on these counts. That application, so it would appear, had proceeded almost entirely on the basis that the delay which had occurred since the entry of the nolle prosequi combined with the unfavourable publicity which had preceded the new presentment operated to produce circumstances where the applicant could no longer receive a fair trial. The learned trial judge refused to stay the proceedings on this basis…
We did not understand Mr Grace to contend that this exercise of his Honour’s discretion, so far as it went, had miscarried. What was contended was that his Honour had only considered the question of whether an abuse of process would occur because the procedures of the court could not operate to extend a fair trial to the applicant and had not considered, or adequately considered, the question of whether it would be fair to try the applicant at all because to do so would amount to an exercise of what is sometimes called “prosecutorial oppression”, ie, to allow the applicant to be re-presented for trial in respect of the same conduct for which he had been previously presented, but in respect of which the prosecuting authority had entered a nolle prosequi, was an oppressive use of the court’s process. It was submitted, on behalf of the applicant, that such oppression was demonstrated because the Director of Public Prosecutions had, by his previous act of entering the nolle prosequi, to all intents and purposes made an effective representation to the applicant that he would not again be tried for these offences or had at least raised in the accused a “legitimate expectation” that he would not be so tried. …
...
There is no case of which we have been made aware in which it has been held to be an “oppressive use of the court’s process” that the Crown has presented a person for trial for an offence in respect of which a nolle prosequi has been previously entered. This is not surprising because the entry of a nolle prosequi is not in law or in fact an official act by the executive amounting to a promise or representation that the accused will not be presented again on the same charge. It is not tantamount to an acquittal. … There are many reasons why the prosecuting authority might choose to enter a nolle prosequi which are quite inconsistent with an intention on its part to forgo further proceedings for the same charge. Those reasons might have as much to do with the availability or capacity of prosecution witnesses as they do with the formation of a view of the strength of the case against the accused.
…
It would, in our view, place an intolerable fetter on the exercise of this valuable power (ie the prosecutor’s power to enter a nolle prosequi) if the court were readily to accede to an application that its processes were being abused for no reason other than that an accused was re-presented on a charge in respect of which a nolle prosequi had previously been entered.
We do not say that there can never be a case where the exercise of the power to make presentment on a charge in respect of which a nolle prosequi has previously been entered will amount to an oppressive exercise of prosecutorial power and thus an abuse of the court’s process. The categories of “abuse cases”, as has often been said, are never closed. We are not, however, satisfied that this is such a case.[17]
(Citations omitted)
[16] [1996] 1 VR 257, (1995) 80 A Crim R 471.
[17] (1995) 80 A Crim R 471 at 478, 479 and 480.
In R v Glencross,[18] the defendant was charged in September 1993 with four sexual offences against AB based on a statement given by AB to the police and four sexual offences against other alleged victims. After the defendant was charged, AB refused to co-operate further with the police and in December 1993 the Director decided not to proceed with the information. The Director proceeded with a new information in respect of the alleged offences against the other alleged victims which was ultimately dismissed on a submission of no case to answer. In 1997, AB gave a second statement to the police and in 1999 an information was laid against the defendant alleging offences against AB including the conduct the subject of the original 1993 information. This Court dismissed an appeal against the refusal of a District Court Judge to grant a permanent stay. Bleby J (Lander and Wicks JJ agreeing) said:
In identifying the proper principles to be applied, it can be said at the outset that delay in itself is not a barrier to the court entertaining a prosecution: Jago v District Court of New South Wales. Furthermore, the decision to grant a stay is not based solely on questions of fairness to the accused. ...
...
... There has been no curial investigation of any of the facts on which the present charges are based. Something further is required than merely the entry of a nolle prosequi or the dismissal for want of prosecution of the earlier proceedings: R v Swingler.
In my opinion it was not demonstrated that there was any misuse of the Court’s process by the prosecution authorities in this case.
The example of the dismissal of earlier proceedings referred to by Deane J in Jago and relied on by the appellant is heavily qualified (a) by the relevant material having been available to the prosecution from the outset, and (b) other particular facts of the case. In this case, it cannot be said that all relevant material had been made available to the prosecution in 1993. Some of the material relating to the earlier allegations had been made available in incomplete form. Other material had not been made available at all, and so far as then known to the police, AB was and an unwilling and possibly untruthful witness. In my opinion it cannot be said, in the light of those circumstances alone that a decision to prosecute some years later when all the facts are known and when an unwilling fifteen year old has become a more mature nineteen year old, in itself constitutes an abuse of process.
Quite apart from not being in possession of the full facts at the time when the first prosecution was withdrawn, the DPP had little alternative but to withdraw the prosecution in respect of AB in the circumstances that were then known and to which I have referred.[19]
(Citations omitted)
[18] [1999] SASC 563, (1999) 206 LSJS 158.
[19] (1999) 206 LSJS 158 at 161 and 164-165.
These and other authorities establish the following general principles:
1.the District Court has power to grant a permanent stay of proceedings which are an abuse of process;[20]
2.the categories of cases which amount to an abuse of process are not closed;[21]
3.it is necessary to enliven the discretion to grant a permanent stay that the prosecution of the proceeding will give rise to unfairness, injustice, prejudice or oppression;[22]
4.the exercise of the discretion involves a balancing of factors including “fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime;[23]
5.the power to grant a permanent stay will be exercised only in exceptional or extreme cases with the onus of persuasion being a heavy one to discharge;[24]
6.mere delay in the institution or prosecution of a proceeding, of itself, is not an abuse of process, but will be abuse of process where the delay results in the trial being unfair;[25]
7.the entry of a nolle prosequi does not amount to a determination of the issues in the proceeding and does not bar the institution of a new proceeding for the same offence;[26]
8.the mere entry of a nolle prosequi at the trial of an earlier information for the same offences, of itself, is not an abuse of process;[27]
9.the entry of a nolle prosequi is more likely to be oppressive or unfair the further a trial has proceeded towards a conclusion in favour of the accused;[28]
10.in assessing whether there is unfairness, injustice, prejudice or oppression, regard is to be had to conduct of the prosecution, the reasons for that conduct and its effect upon the accused.[29]
[20] Jago v District Court of New South Wales (1989) 168 CLR 23 at 26 per Mason CJ; Rona v District Court of South Australia (1995) 63 SASR 223 at 226 per King CJ (Mohr J agreeing).
[21] Jago v District Court of New South Wales (1989) 168 CLR 23 at 53 per Brennan J and 74 per Gaudron J; R v Swingler (1995) 80 A Crim R 471 at 480 per Winneke P, Callaway JA and Crockett AJA.
[22] Walton v Gardiner (1993) 177 CLR 378 at 392–393 per Mason CJ, Deane and Dawson JJ.
[23] Walton v Gardiner (1993) 177 CLR 378 at 396 per Mason CJ, Deane and Dawson JJ; Jago v District Court of New South Wales (1989) 168 CLR 23 at 33 per Mason CJ.
[24] Jago v District Court of New South Wales (1989) 168 CLR 23 at 31, 34 per Mason CJ, 60 per Deane J and 76 per Gaudron J; Williams v Spautz (1992) 174 CLR 509 at 529 per Mason CJ, Dawson, Toohey and McHugh JJ.
[25] Jago v District Court of New South Wales (1989) 168 CLR 23 at 34 per Mason CJ; R v Jacobi [2012] SASCFC 115, (2012) 114 SASR 227 at [44], [57]-[59] per Gray and Sulan JJ.
[26] R v Doyle (1987) 30 A Crim R 379 at 381 per Connolly J (Vasta J agreeing) and 385 per Shepherdson J; R v Swingler (1995) 80 A Crim R 471 at 480 per Winneke P, Callaway JA and Crockett AJA.
[27] R v Glencross (1999) 206 LSJS 158 at 161 and 164-165 per Bleby J (Lander and Wicks JJ agreeing).
[28] R v Jell; Ex parte Attorney–General (1990) 46 A Crim R 261 at 275 Thomas J (Macrossan CJ and Lee J relevantly agreeing).
[29] R v Swingler (1995) 80 A Crim R 471 at 480-481 per Winneke P, Callaway JA and Crockett AJA.
The fact that a nolle prosequi was entered in respect of a proceeding on an earlier information for the same offences is simply one of all of the circumstances to be taken into account in determining whether the institution and prosecution of a new proceeding comprises an abuse of process. The authorities extracted above demonstrate that there is no new or special category of abuse of process arising merely from the earlier entry of a nolle prosequi in a previous proceeding. The defendant’s first contention should be rejected.
A relevant factor
The defendant’s second contention is that the Judge erred in failing to take into account a relevant factor being the institution of a new proceeding after a nolle prosequi had been entered at the commencement of the trial of earlier charges alleging the same or essentially the same offences.
The Judge described the second contention by the defendant in the following terms at [57]:
The second argument (which generally assumes the failure of the first argument) is that, consistent with established principle, when the use of the nolle prosequi is considered with all of the other factual circumstances in this matter, a ground for the stay of the proceedings has been established.
The Judge embarked upon a detailed review of the authorities in which the relevance of the entry of a nolle prosequi on an application for a permanent stay was considered, some of which are referred to above. With regard to the authorities, the Judge concluded that the entry of a nolle prosequi is one factor to be taken into account, but it is necessary to consider all of the circumstances to determine whether the institution and prosecution of a subsequent proceeding is unfair, unjust, prejudicial or oppressive. The Judge identified his approach to the assessment of the circumstances of the particular matter. He said at [244] and [246]:
In my view, it is necessary to assess all of the circumstances put to me in combination in the balancing exercise that I am required to perform. In my view, when one considers these matters separately, they will have a particular weight. However, the proper weight to be given to the matters in combination may be quite different because of the combination of a less important matter with a matter of intermediate importance. That is, I think it is appropriate to approach the task before me on the basis of the combination of the whole of circumstances of this case.
....
In giving consideration to the exercise of the power to stay or not to stay proceedings, I must address the question of whether the processes of this Court have been converted into instruments of injustice or unfairness.
The Judge considered the circumstances of the case with reference to the specific prejudice that the defendant contended he would suffer due to the institution of the new proceeding more than 20 years after entry of the nolle prosequi.
The defendant filed an affidavit in which he deposed to the prejudice that he said he would suffer. He said that, in preparation for the trial of the 1988 proceeding, he had obtained, and provided to his solicitor, work records and other documents that he no longer had. His affidavit included the following passages:
My recollection is that when I met the complainant’s mother I was working as a truck driver for PDE Excavations at an army camp near Port Wakefield. After a time I worked for Marine Industries on Torrens Island and then for Hanson Road Transport.
I was also at the time around the alleged offences driving a tip truck unloading a ship called “The Accolade” at Port Adelaide…
I believe that in 1988 work records were provided to, or obtained by, my solicitor. I think he also had logbooks.
...
I have not retained any records which I may have had, as I have had no reason to. ...
Given the significant time that has lapsed since these matters were previously prosecuted, I have not been able to obtain any proof such as work records, diary notes, telephone records or any other materials that I may have been able to obtain at the time to assist in my defence.

The Judge observed that the defendant did not claim in his affidavit that the work records and other documents would have been relevant at his trial of the offences the subject of the new information, nor did he explain how they could have been relevant to any issue at the trial. There is no evident basis on which those documents would have been relevant because, with two exceptions, K did not identify the dates on which the sexual contact occurred and in general terms there was no suggestion from the defendant in his affidavit or otherwise that he was not living at Ethelton with K and her mother from mid-1985 to March 1988. The first exception was the honeymoon in Tasmania in January 1986, again there was no suggestion from the defendant that the family did not go on the honeymoon to Tasmania in January 1986. The second exception was the night before the defendant was asked to leave, and, again, there was no suggestion from the defendant that he was not asked by J to leave, or that he was not accused on that occasion of having touched K sexually. On appeal, the defendant makes no complaint about the Judge’s treatment of the work records and other documents.
The defendant also contended before the Judge that he had suffered prejudice due to adverse changes in the evidentiary and procedural landscape affecting a trial now compared to approximately 20 years ago. The Judge gave careful and detailed reasons for rejecting this contention and there is no challenge on appeal to this aspect of the Judge’s reasoning.
The Judge identified that, on the evidence before him, the sole reason for the entry of the nolle prosequi in January 1990 was that K, who was then 10 years old, was unwilling and unable to be proofed or to go to court at all and that subsequently in July 2008, when she was 28 years old, she felt able to proceed with the matter and wished to re-agitate it.
The Judge considered that, when the entry of the nolle prosequi was considered with all of the other factual circumstances in the matter, there was not a sufficient basis made out to justify an order for a stay of the proceeding. The Judge concluded at [253], [257] and [261]:
In those circumstances, and giving all appropriate weight to the factual assertions made by the accused, I am not satisfied that the absence of those materials and the inability of the accused to obtain any copies of those materials due to the effluxion of time means that the accused cannot have a fair trial.
…
I am unable to accept the submission made by Mr Algie SC concerning unfairness, prejudice, oppression or injustice. I have come to that conclusion for two reasons. The first is that if oppression or prejudice was to be properly established, then the accused would be required to provide far greater evidence in affidavit form than what has been provided already. There is no evidence that the accused is unable to tax his memory in order to recall the matters that were pertinent concerning these charges. There is no sufficiently probative evidence in the affidavit materials (however broadly they are read) that supports a contention that there is an indelible link between the availability of the material in 1988 which is now lost and a successful defence of these proceedings by the accused both in 1988 and today.
…
In my opinion, having regard to all of the relevant authorities that I have discussed herein and in the particular factual circumstances of this case, it is my view that the accused has not suffered a sufficiently significant forensic disadvantage nor do I consider that the evidence to be led in this case is insusceptible of rational or safe forensic evaluation that justifies an order for a permanent stay of these proceedings. In my view, the prejudice to the accused which I accept does exist for the reasons set out above does not outweigh the public interest in having the charges tried.
It is evident that the Judge did take into account the entry of the nolle prosequi in the earlier proceeding and the subsequent institution of a fresh proceeding and the circumstances in which they occurred in reaching his overall conclusion. The defendant’s second contention should be rejected.
Product of dreams or suggestions
The next ground of appeal is that the trial Judge failed to give adequate reasons for rejecting the possibility that the complainant’s recollections of the offending were the product of dreams or suggestions by her mother.
Dreams
As earlier noted, the defendant gave evidence that K had nightmares that disturbed her sleep and this was the main reason why he entered her bedroom at night. It was put to K and J in cross-examination that K had such nightmares and this explained the defendant’s entry into her bedroom at night.
The trial Judge addressed at length this relevance of the question whether K had nightmares and the defendant on appeal makes no complaint about this aspect of the trial Judge’s reasons for judgment. While the trial Judge thought it more probable that K’s nightmares occurred earlier in the period of time when the defendant was living at the house than later,[30] nevertheless the Judge proceeded on the basis that maybe the defendant sometimes went in to K’s bedroom because she was disturbed in her sleep by a nightmare.
[30] Based on contemporaneous records of the Department of Community Welfare that K was experiencing nightmares in November–December 1985 but they had resolved by the end of February 1986.
The defendant’s complaint the subject of this ground of appeal is that the trial Judge did not, in his reasons for judgment, address a second relevance of the nightmares, namely that the sexual offences which K said occurred were really just the product of dreams or nightmares.
On the hearing of the appeal, the defendant concedes that it was not put to the trial Judge in closing address that a possible explanation for K’s evidence was that the sexual offending was really just the product of dreams or nightmares. The defendant also concedes that it was not fairly and squarely put in cross-examination to K that the sexual offending which she described as occurring was merely the subject of dreams or nightmares. That concession is rightly made. K’s evidence was that the sexual offending in the defendant’s bedroom was not an isolated occurrence but occurred regularly and correlated to the absence of her mother from the house. Similarly, her evidence was that the sexual offending in her own bedroom occurred on a regular basis. It was inherently very unlikely that this was all the product of dreams. In these circumstances, there was no call for the trial Judge to address that possibility in his reasons for judgment unless he had been explicitly invited to do so by the defendant in his closing address on some evidential foundation.
Suggestion by J
As earlier noted, K and J gave evidence that they had a conversation on the morning of the day on which the defendant was asked by J to leave the house concerning what had been going on between K and the defendant. K gave evidence that, while she did not recall the precise terms of the conversation, she thought that her mother asked her whether the defendant touched her on her private parts and she said yes. The trial Judge said that he was unable to make a finding with sufficient confidence whether J asked K a general question as to what was going on or whether she asked if the defendant had been touching K.
The defendant contends that there was a reasonable possibility that K’s apparent recollection of the sexual offending was the result of suggestion by her mother rather than a recollection of what actually occurred and that the trial Judge’s reasons are deficient because he did not address this possibility.
In closing address, the following submission was made on behalf of the defendant to the trial Judge:
[K] eventually agreed, I think, that in her statement to the police the mother asked what was clearly a leading question in the form of 'Mum asked me, using the words to the effect of "Has [the defendant] ever touched you on your private parts?"', to which she apparently agreed. Of course, then we go from there to every time in the bedroom, in the past almost every week there's sexual impropriety. So if a false recollection with respect to touching when she's asleep is created by whatever is discussed or suggested by the mother in the morning, then every time that he's been in the room to comfort her or to tuck her bed in or to get her a drink of water then becomes another act of sexual touching and no doubt another act of sexual touching whether she's awake or not.[31]
[31] T184.24-T184.38.
In cross-examination, it was not put to K that the discussion with her mother on that morning had led to a false recollection of touching the night before, nor was it put to K that the discussion with her mother had any effect upon her recollection of the events over the years in her own bedroom or in the defendant’s bedroom. No foundation was laid for the submission made in closing address, which was relatively half hearted and did not extend to all of the occasions on which K gave evidence that sexual touching occurred.
The trial Judge did not refer to the submission extracted at [57] above in his reasons for judgment, but he did give detailed reasons for accepting K’s evidence that the sexual touching occurred over a period of years as described by K in her evidence. A question whether the defendant had touched K in her private parts, if asked, was not a leading or forceful question and it is so unlikely that that question could have led to a false recollection by K of the numerous events which she described in her evidence that it was not essential for the trial Judge to deal with the submission in his reasons for judgment in the circumstances in which an adequate evidential foundation had not been laid for the submission.
In R v Arthur,[32] this Court considered the impact on a defence theory that a child victim had been coached by her mother by defence counsel not having put the theory to them. King CJ (White and Bollen JJ agreeing) said:
Counsel was entitled to put any theory which commended itself to him as an explanation of what were said to be false allegations, to the jury for their consideration. If, however, counsel wishes any theory to be taken seriously by the jury, it seems to me to be essential that that theory should be explored with witnesses who would be implicated if the theory were true. … Neither the court nor jury can be expected to give credence to a theory that a witness may have instigated a false story or been a party to concoction of it, if questions are not asked of that witness to ascertain that witnesses’ response to the suggestion. I do not think that the questions which were asked of the witnesses in cross-examination went nearly as far as to test out this theory on them and in those circumstances counsel could not hope to have it taken seriously. ... If the theory was to be put forward by the defence, it ought to have been explored with relevant witnesses. It if hardened, in consequence of such questioning, into a definite argument to be put to the jury, the specific suggestion ought to have been put to the relevant witnesses in order to give them an opportunity to admit or deny it and in order to enable the jury to gauge their reaction to the suggestion.[33]
[32] R v Arthur (1991) 163 LSJS 18.
[33] R v Arthur (1991) 163 LSJS 18 at 26.
In this case, despite calling for a self-analysis on the defence theory of unconscious thought processes, there are many things that K may have been able to say which made the theory even less probable than it inherently seems. In the absence of the theory’s proper exploration, there was no miscarriage of justice in the Judge’s elliptical treatment of the issue.
Forensic disadvantage
The final ground of appeal is that the trial Judge failed to give due regard to the forensic disadvantage suffered by the defendant arising from delay.
The defendant contends that the trial Judge failed to give adequate weight to the defendant’s forensic disadvantage and in particular his inability to conduct his defence case effectively because he was unable to cross-examine the prosecution witnesses effectively.
The trial Judge referred in his reasons for judgment at some length to the forensic disadvantage of the defendant. He said at [177] to [181]:
I referred earlier in these reasons to the fact that the events about which this trial was concerned occurred 25 years or more ago. That is a very significant period of time. It may have significant deleterious effects on the ability of the accused to defend himself against this charge. In this case that gives rise to a significant forensic disadvantage to the accused which might adversely affect his ability to have a fair trial. Unless this is acknowledged there is a real risk that the accused may suffer a miscarriage of justice by being wrongly convicted.
The significant delay in this matter has given rise to a significant forensic disadvantage to the accused, not only in respect of his ability to give evidence from a memory which may be tarnished by the effluxion of such a lengthy period, but which might result in a diminution of his ability effectively to conduct a case in his defence. That will include the cross-examination of K in a way that may cast doubt upon her credibility and her reliability, and will also include his ability to investigate and to marshal potential evidence and witnesses that may support a case in defence, including a challenge to K’s credibility and reliability. This forensic disadvantage is compounded in this case because of the nature of the charge here and K’s evidence regarding the sexual acts and conduct alleged to make up the charge against the accused. In saying this I am referring to the nature of the allegations of K in that she spoke of the accused touching her vagina and inserting his finger into it on many occasions over many months, and the fact that he rubbed her vagina against his penis on many occasions over many months. None of these occasions were identified as occurring on any particular occasion, except for the night before the accused left the house in respect of his touching her vagina and in respect of what she said happened on the honeymoon when she said he rubbed her vagina against his penis in a motel room in Tasmania.
Accordingly, the accused faced a trial in respect of which he could not say much more than none of the sexual events described by K occurred, and he had to say that 25 years or more after they were said to have occurred.
…
It is for these reasons that I must, in considering the evidence and in reaching my verdict, scrutinize K’s evidence with great and particular care. I consider that in this case I must also acknowledge the significant forensic disadvantage the accused had in giving his evidence so long after the events when assessing him and the evidence that he gave at his trial.
The defendant does not complain on appeal concerning the weight given by the trial Judge to the forensic disadvantage suffered by the defendant himself in giving his own evidence. Rather, he complains that the trial Judge gave insufficient weight to the forensic disadvantage suffered by the defendant in cross-examining K and J.
In relation to the cross-examination of K, in the passage extracted above the trial Judge explicitly referred to this forensic disadvantage, which he said was compounded by the nature of the allegations that in general terms the sexual touching occurred regularly and K did not identify specific occasions.
The defendant refers to K’s evidence in cross-examination that she did not recall an occasion when her natural father masturbated in front of S and herself or a discussion with S or J on that topic. The defendant refers also to J’s evidence that she did not recall any discussion with anyone on this topic. Department of Community Welfare records from February 1986 tendered in evidence proved that S had told the police that K’s father masturbated in front of them and that, when questioned by J about it, K denied that this occurred. K’s father when interviewed also denied that this occurred and the Department concluded there was no abuse and no risk. The trial Judge addressed the evidence from the Department at some length and concluded that it was equivocal and added nothing of value to his consideration and determination of the issue in the trial. The trial Judge referred to the current lack of recollection of either K or J of the allegation by S or the investigation by the Department. There is no basis for a contention that the trial Judge did not accord sufficient weight to the forensic disadvantage suffered by the defendant in this specific respect.
The defendant also points to evidence by K in cross-examination that she did not recall her mother or the defendant coming into her room, giving her a glass of milk, tucking her in or calming her after a nightmare and she did not recall her mother putting her to bed when she slept in the bed with the defendant. The trial Judge in his reasons for judgment gave a detailed summary of K’s evidence, including various matters that she did not recall. There is no basis for a contention that the trial Judge did not accord sufficient weight to the forensic disadvantage suffered by the defendant in respect of matters that K does not now recall. More generally, the trial Judge accorded appropriate weight to the forensic disadvantage suffered by the defendant in cross-examining K.
The trial Judge in his reasons for judgment gave a detailed summary of J’s evidence. Ultimately, for differing reasons, the trial Judge did not rely upon J’s evidence insofar as it implicated the defendant. In particular, the trial Judge was not sufficiently persuaded that J observed the defendant having a partial erection when playing with K or that J saw the defendant’s hand under the sheet on the night before J asked the defendant to leave. He was not sufficiently persuaded of J’s account of the conversation with K on the morning of the day on which she asked the defendant to leave the house to rely upon her account, nor was he sufficiently persuaded of J’s account of the conversation with the defendant that evening that the defendant admitted sexual contact with K. Given these various conclusions by the trial Judge concerning J’s evidence, her evidence did not assume the same significance as it otherwise might have for the ultimate determination of the defendant’s guilt.
The defendant points specifically to evidence by J in cross-examination that she did not recall K having nightmares at the relevant time, nor did she recall any suggestion of inappropriate contact or abuse by K’s father. For the reasons given above in the context of K’s own evidence, there is no basis for a contention that the trial Judge did not accord sufficient weight to the forensic disadvantage suffered by the defendant in respect of matters that J does not now recall.
The defendant’s contention that the trial Judge failed to give adequate weight to the defendant’s forensic disadvantage and in particular his inability to conduct his defence case effectively by being unable to cross-examine prosecution witnesses effectively should be rejected.
Conclusion
No error has been demonstrated in the Judge’s reasons for refusal of the permanent stay of the proceeding as an abuse of process.
No error has been demonstrated in the trial Judge’s reasons for judgment or in the weight that he gave to the forensic disadvantage of the defendant.
I would dismiss the appeal.