R v B, P - [2015] SADC 94

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v B, P
[2015] SADC 94
Ruling of His Honour Judge Chivell
19 June 2015
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS
Accused charged with five counts of unlawful sexual intercourse. Other charges laid in another jurisdiction in 1999 and finalised in 2002 - South Australian charges laid in 2012. Application for stay of proceedings on grounds of delay and alleged prosecutorial misconduct amounting to abuse of process.
Application refused.
Evidence Act 1929 (SA) s 34CB, referred to.
Jago v District Court of NSW (1989) 168 CLR 23; Williams v Spautz (1992) 174 CLR 509; R v Glennon (1992) 173 CLR 592; Barton v R (1980) 147 CLR 75; Walton v Gardiner (1992-3) 177 CLR 378; Rona v District Court of SA (1995) 63 SASR 223; Sedmak v Police [2008] SASC 307; R v Polyukhovich unreported, SA Supreme Court, Judgment No. S3782, 22/12/92; R v Wagner (1993) 66 A Crim R 583; R v Gray unreported, SA Supreme Court, Judgment No. S6431, 12/11/97; R v Liddy (No 4) [2001] SASC 152; R v Jacobi (2012) 114 SASR 227; R v B, GN [2014] SASCFC 109; R v H, ML (2006) 96 SASR 139; R v Lane unreported, Wilcox, Ryan & Higgins JJ, 19/6/95, considered.

R v B, P
[2015] SADC 94

PB is charged with five counts of unlawful sexual intercourse. He has pleaded not guilty. He now seeks a stay of proceedings so that the trial may not proceed. The trial is listed to commence in this Court on 20 July 2015.
PB’s application is based upon two complaints:
·delay – the relevant events occurred so long ago that PB would not now be able to have a fair trial;
·abuse of process – the handling of the investigation by the police has resulted in incurable unfairness to PB.
The alleged victim of these offences was PB’s niece. I will call her ‘C’. C’s mother and PB’s wife are sisters.
C was born in 1985. It is alleged that the acts of sexual intercourse occurred between 1991 and 1994, when C was between about six and nine years old. The charges are very serious for that reason.
The application for a stay should have been made within one month of PB’s first arraignment. That occurred on 6 May 2013. The application was not made until 2 May 2014. The Director of Public Prosecutions did not oppose the granting of an extension of time to make the application. I grant an extension until 10 March 2015.
It is well known that a stay of criminal proceedings should only be granted in rare and exceptional circumstances.[1] Mason CJ has said that there must be a:
… fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”.[2]
[1] Jago v District Court of NSW (1989) 168 CLR 23 at 31; Williams v Spautz (1992) 174 CLR 509 at 529
[2] Jago at 34; R v Glennon (1992) 173 CLR 592 at 605-6
It is for the accused to demonstrate the existence of facts which would justify a stay. The onus is a heavy one.[3]
[3] Williams v Spautz at 529
I have a discretion to grant the order as part of my inherent power to protect the courts’ processes from abuse.[4] The exercise of the discretion involves the balancing of several interests: preventing unfairness to the accused, ensuring that serious offences are properly dealt with, and ensuring that public confidence in the administration of justice is maintained.[5]
[4] Barton v R (1980) 147 CLR 75 at 95-6
[5] Walton v Gardiner (1992-3) 177 CLR 378 at 395-6; Rona v District Court of SA (1995) 63 SASR 223 at 230; Sedmak v Police [2008] SASC 307
In order to understand PB’s complaints, it is necessary to set out a brief chronology of events.
The offences are alleged to have occurred when C was living with her mother in Morphett Vale, a suburb south of Adelaide, and PB was living with his wife and children in Hackham West, a nearby suburb.
In October 1994, PB and his family relocated to Darwin. In 1996, C and her mother also moved to Darwin. They lived with PB and his family for a while, and later found their own house to live in.
On 15 December 1998, C made a statement to a Northern Territory police officer in which she alleged that, on several occasions, PB acted in a way which might have been preparatory to sexual assault (e.g. pulling her pants down), but which did not progress any further. She said that these incidents occurred in South Australia before she moved to Darwin.
In that statement, C also alleged that on several occasions PB had sexually assaulted her in the Northern Territory, including one act of forceful penile/vaginal sexual intercourse. C was 13 years and 11 months old when she gave the statement.
On 14 May 1999, PB was interviewed by police in Darwin. PB admitted touching C on the ‘outside’ but denied ‘penetrating’ her.[6] PB also admitted, in a very general way, similar touching of C in South Australia.[7]
[6] Record of Interview, p 4
[7] Record of Interview, p 17
On 1 July 1999, at the request of the Northern Territory Police, C gave a further statement to a Constable Cunningham of the SA Police Sexual Assault Section. In this statement, C’s allegations as to the Northern Territory incidents were more serious than those she had made only six months or so earlier. For example, she alleged that on one occasion when PB slept next to C on a camping trip, he fondled her breasts. She had made no such allegation in the first statement.
Similarly, C’s allegations as to what happened in South Australia had also escalated. She was now alleging one incident of digital penetration of her vagina.
Constable Cunningham cannot now be located, and her notes are also missing. In her memorandum to her senior officer, Constable Cunningham observed that C had a ‘very limited memory’ of what had occurred.
What is clear is that by July 1999, South Australian police officers were aware that C was alleging that PB had committed at least one serious sexual offence against her in this State.
In a much later statement, dated 2 May 2014, C said that she was not asked to make any report to South Australian police about what had happened in this State. She thought that all of PB’s behaviour would be dealt with in the Northern Territory proceedings.[8] She discovered in 2002 that her understanding was incorrect. The Northern Territory prosecutor told her that the proceedings did not relate to PB’s behaviour in South Australia.[9]
[8] p 2
[9] p 3
On 26 October 1999, an information was laid in the Northern Territory charging PB with three counts of ‘indecent dealing’ and one count of rape. On 3 April 2002, PB pleaded guilty in the Darwin Court of Summary Jurisdiction to one count of indecent dealing. The other charges were withdrawn. A four-month suspended sentence of imprisonment was imposed on 25 July 2002.
On the day PB entered his plea of guilty, C was just over 17 years old.
C did not make any further complaint to police until 22 March 2012. On that day, she gave a statement to a police officer at Christies Beach Police Station. It is dated 1 June 2012. By this time, C was alleging ‘persistent’ sexual assaults from the age of four until 1998, when she was 13. She identified five specific instances of digital and penile/vaginal intercourse. These form the basis of the five counts in the information.
In her statement of 2 May 2014, C explained that she did not report PB’s behaviour in South Australia until 2012 because:
… at the time of the court case in the Northern Territory and for years after I was feeling extremely let down by the Justice system and I wasn’t up for the emotional stress to make another report in another state. At that time there was no way I [was] going to do this all over again to have the same outcome, by outcome I mean that I walked away from the Northern Territory Court process feeling unsupported and extremely upset. I was too young and the experience was completely overwhelming it was just too much. If I wasn’t ready in the Northern Territory to go through with the court process there was no way at that time that I was ready to do it in South Australia either.
It was always in the back of my mind that if I ever felt strong enough that I could come to the South Australia police and make an official report and statement. It was only after the birth of my son that I felt really strong enough to go to the South Australia Police. After years and years of counselling and psychologists I realised that I couldn’t come to terms with what had happened to me and that my complaint against [PB] was incomplete until I made the report to the South Australia Police.[10]
[10] pp 3 & 4
PB was arrested in the Northern Territory on the South Australian charges in November 2012. C has made three further statements since March 2012 (in June 2012, May 2013 and May 2014).
Mr Lindsay submitted that although he has presented his case on the bases of both delay and abuse of process, they are not separate issues.
There is authority for the proposition that a stay on the basis of delay is in a separate category from one based on abuse of process.[11] However, Deane J in Jago observed that the two bases are interrelated. His Honour said:[12]
Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed.
Toohey J also observed in Jago:[13]
To treat abuse of process and fair trial as entirely distinct concepts carries the risk that the remedies in each case will be seen as necessarily different. That will not always be the case. Greater flexibility and in the end greater justice will be achieved if the two notions are understood as bearing on each other.
…
There is more than one interest involved in the trial of the appellant. The Crown has an interest in bringing him to trial; he, of course, has an interest in obtaining a fair trial; running in parallel is the public interest that charges of serious offences be disposed of but that they be disposed of at a hearing which is fair and not oppressive to the person charged. The court is alert to see that a person charged receives a fair trial, not to punish the behaviour of the Crown. As Kirby P. pointed out in the Court of Appeal, there is no suggestion in the present case that the prosecuting authorities deliberately caused the delay to gain some advantage for themselves. [Citations omitted]
[11] see Rona (supra) per King CJ at 226 and Olsson J at 230
[12] supra, at 58
[13] supra, at 72
Although the delay in this case is substantial, such delays have become common since the limitation on prosecutions for so-called ‘historical sex’ cases was lifted in 2003.
In R v Polyukhovich,[14] Cox J observed in 1992 that it would be a ‘rare case in which mere delay, even very long delay, would lead to a stay in the absence of some evidence of actual prejudice to the accused’.
[14] unreported, SA Supreme Court, Judgment No. S3782, 22/12/92; see also R v Wagner (1993) 66 A Crim R 583
Mr Lindsay submitted that I should follow the decision of Bollen AJ in R v Gray that a delay of about eight years ‘must come very close to being a case in which delay itself would demand that one order a permanent stay’.[15] Mr Lindsay sought to distinguish the decision in R v Liddy,[16] to the contrary, on the basis that in that case there were five complainants whose evidence was cross-admissible. I do not see that to be a material distinction.
[15] Unreported, SA Supreme Court, Judgment No. S6431, 12/11/97
[16] R v Liddy (No 4) [2001] SASC 152
The granting of a stay is discretionary. I am not bound to follow the example of any other judicial officer exercising his or her discretion. Each case must be decided on its own facts. In any event, Cox J in Polyukhovich and Nyland J in Liddy exercised their discretions in different ways.
Mr Lindsay submitted that this was a case of both unreasonable delay and prosecutorial misconduct.
The following facts have been identified which, it is submitted, justify a stay in this case:
·the delay of about 13 years;
·SA Police were on notice since 1999 that C was alleging that she had been sexually assaulted by PB – their failure to charge PB with the South Australian offences at that time has not been explained;
·if he had been charged then, the loss of evidence from Constable Cunningham would not have occurred;
·C’s allegations have escalated in seriousness over the years – PB is now unable to test the reason for this having occurred;
·PB is now unable to test the ‘internal topography’ of rooms where offending is alleged to have occurred;
·there is now the possibility that the alleged offending in South Australia was taken into account by the Darwin magistrate in 2002, but the delay has prevented further information being available about that.
There is nothing exceptional about the first five of those points. Constable Cunningham’s opinions about the vagueness of C’s memory are probably inadmissible. It is doubtful that, even if she were located, Constable Cunningham would be able to do more than refer to the statement she took, and the vagueness of C’s memory is apparent from all of the statements in any event.
PB’s counsel at trial would be able to test in cross-examination the reasons for the escalation in C’s allegations, and the state of her memory at various stages.
Issues of forensic disadvantage were dealt with in both and R v Jacobi[17] and R v B, GN[18] In both cases, the Court of Criminal Appeal held that such issues could be adequately dealt with by appropriate directions from the trial judge. In my view, the same applies in this case. The enactment by Parliament of s 34CB of the Evidence Act 1929 was clearly intended to address the issue of forensic disadvantage caused by delay. An explanation and direction pursuant to s 34CB(2) would no doubt be necessary at the trial.
[17] (2012) 114 SASR 227
[18] [2014] SASCFC 109
As to the sixth point, I do not accept that there is such a possibility, on the evidence. The Northern Territory prosecutor told C that the South Australian offending was not to be taken into account in the Northern Territory. That was the reason why she was so ‘disillusioned’ with the Northern Territory authorities.
In any event, for the Northern Territory magistrate to have taken such behaviour into account as an aggravating factor which would justify additional punishment, would have been an error of law.[19] I reject Mr Lindsay’s submission to the contrary at [27-28] of his written submissions. Even if it had been taken into account to justify denying leniency, on the basis that PB’s offending was not isolated, no prejudice arises. That would merely have been an acknowledgment of the true situation.
[19] see R v H, ML (2006) 96 SASR 139 at [38-39]
Further, the sentence imposed for such serious offending against a child of 11 does not indicate to me that leniency was denied.
In this case, there is no evidence of prosecutorial misconduct of the kind referred to by Toohey J in Jago.[20] There is no evidence that the delay was deliberate in order to gain some advantage. Even if the police in South Australia knew that C wanted to complain about PB’s behaviour here, it may be that they thought it advisable to wait until the Northern Territory proceedings were over. This could have been justified for a multiplicity of reasons, including that the Northern Territory police may have opposed extradition of PB until their proceedings had been finalised.

[20] supra

Having regard to C’s statement of 2 May 2014, it is more likely that the further delay until 2012 was occasioned by her reaction to the sentence imposed in the Northern Territory in 2002.
The following passage from R v Lane,[21] referred to by Ms Harrison, counsel for the Director of Public Prosecutions, is apposite here:
… it is commonplace for there to be a substantial delay in the reporting of alleged sexual assaults, especially where the complainant is a child … it seems that many sexual assault victims are unable to voice their experience for a very long time. To adopt a rule that delay simpliciter justifies a stay of criminal proceedings would be to exclude many offences, particularly offences against children, from the sanctions of the criminal law.
[21] unreported, Wilcox, Ryan & Higgins JJ, 19/6/95, cited in Davis (1995) 81 A Crim R 156
The actions of the prosecuting authorities in this case do not amount to prosecutorial misconduct. The situation here can be compared with that in R v B, GN,[22] where the prosecution entered nolle prosequi in 1990 and then recharged the defendant more than 20 years later. In that case, the delay was also caused by the complainant’s reluctance to move forward until much later. There, a stay was refused, and the appeal against refusal was dismissed. In Jacobi,[23] the delay was for more than 35 years.
[22] supra
[23] supra
In all those circumstances, PB has not discharged the heavy onus of establishing sufficient grounds to justify the exercise of my discretion to stay the proceedings.
The application is refused.