R v B, GN

Case [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…

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R v B, GN [2014] SASCFC 109
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[2014] SASCFC 109
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CaseChat Overview and Summary

The defendant appealed his conviction on three grounds to the Supreme Court of South Australia. The first ground concerned the trial judge's refusal to grant a permanent stay of proceedings as an abuse of process, specifically relating to the prior entry of a nolle prosequi in respect of earlier charges for the same offences. The second ground alleged that the trial judge failed to provide adequate reasons for dismissing the possibility that the complainant's recollections were the product of dreams or suggestion. The third ground argued that the trial judge did not sufficiently consider the forensic disadvantage suffered by the defendant due to the delay in proceedings.

The court was required to determine whether the entry of a nolle prosequi in a previous proceeding, followed by the institution of fresh proceedings for the same offences, constituted an abuse of process warranting a permanent stay. Additionally, the court had to assess whether the trial judge adequately addressed the potential influence of dreams or suggestion on the complainant's testimony and whether due regard was given to the prejudice caused to the defendant by the delay in the proceedings.

Blue J, with Kourakis CJ and Vanstone J agreeing, dismissed the appeal. Regarding the abuse of process claim, the court held that the prior entry of a nolle prosequi is a factor to be considered, but it does not create a new category of abuse of process. The trial judge had properly taken this into account, along with the circumstances of the fresh proceedings, in concluding there was no abuse. On the second ground, the court found no error, as the possibilities of dreams or suggestion were not sufficiently put to the complainant or the trial judge in submissions. Finally, the court determined that the trial judge had given appropriate weight to the forensic disadvantage arising from the delay, including the defendant's diminished ability to cross-examine prosecution witnesses.

Orders

Orders of the court

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]).

Background

Background to the litigation

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] and3.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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.