R v Ball
[2013] SADC 21
•27 February 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v BALL
[2013] SADC 21
Judgment of His Honour Judge Slattery
27 February 2013
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS
Applicant sought a permanent stay of criminal proceedings on the basis that the same or similar charges were the subject of a nolle prosequi in 1990 and that evidence which was once available to the accused is now lost due to substantial delay.
No novel principle arising which requires the identification and assessment of further and separate discretionary considerations because of the entry of the nolle prosequi in 1990 and the legislative changes that have occurred since 1990.
No sufficiently significant forensic disadvantage suffered.
Held: application refused.
Criminal Law Consolidation Act 1935 (SA) s50; Criminal Code 1986 s632; Evidence Act 1929 (SA) s34CB, s34M, referred to.
R v Glencross (1999-2000) 2006 LSJS 158 ; Longman v The Queen (1989) 168 CLR 79 ; Jago v District Court of New South Wales & Ors (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378 ; R v Cassebohm (2011) 109 SASR 465 ; Crampton v The Queen (2000) 206 CLR 161 ; Sedmak v Police [2008] SASC 307; R v Hakim (1989) 41 A Crim R 372; R v Littler (2001) 120 A Crim R 512; Police v Pakrou (2008) 103 SASR 124 , applied.
R v Swingler (1995) 80 A Crim R 471 ; Nathan Todd Cooney (1987) 31 A Crim R 256 ; R v JCM [2007] QDC 211; Williams v Spautz (1992) 174 CLR 509 ; R v Jell (1990) 46 A Crim R 261; R v Jacobi [2012] SADC 92; JJB v The Queen (2006) 161 A Crim R 187 ; Question of Law Reserved on Acquittal (1996) 66 SASR 450 ; Rona v District Court (SA) (1994) 63 SASR 223 ; R v YI [2004] ACTSC 115 (27 October 2004); R v SH [2009] ACTSC 50 (8 May 2009); R v Mellifont (1992) 64 A Crim R 75; Queen v Craig Anthony Trainor (1991) 56 A Crim R 102; R v N, RC (2012) 112 SASR 399 ; R v Davis (1995) 81 A Crim R 156; Attorney General’s Reference No.1 (1998) 49 SASR 1 ; R v S, DD (2010) 109 SASR 46; R v Seigneur (2009) 103 SASR 207, discussed.
Robinson v The Queen (1999) 197 CLR 162 ; R v Szejnoga (1998) 199 LSJS 97 ; Kilby v The Queen (1973) 129 CLR 460 ; Crofts v The Queen (1996) 186 CLR 426; R v Corkin (1989) 50 SASR 580 ; R v Hasler, ex parte Attorney General [1987] 1 Qd R 239 ; Hamilton v Oades (1989) 166 CLR 486 ; Jackson v Sterling Industries Limited (1987) 162 CLR 612 ; Driscall v The Queen (1977) 137 CLR 517 ; Re Cooney (1987) 31 A Crim R 256 ; R v Polyukhovich s3782 unreported SASC Cox J 22 December 1992 ; R v Austin (1995) 84 A Crim R 374 ; Duncan v Cruise (2001) 161 FLR 250, considered.
R v BALL
[2013] SADC 21INDEX
1. The 2012 information [1]
2. The facts: a brief description [4]
3. The position in 1988 [9]
4. The nolle prosequi [13]
5. The position since 1990 [16]
6. The factual circumstances surrounding the current information [23]
7. The information provided by the DPP to the accused in 2012 [29]
8. The application for a stay [33]
9. The events in 1989-1990 [38]
10. Matters not in issue in this application [46]
11. The questions for decision [54]
12. Result [59]
13. The power of the District Court to permanently stay criminal proceedings[62]
14. R v JCM [67]
15. R v Glencross [79]
16. R v Swingler [100]
17. Speculation as to views in 1990 [110]
18. R v Jell [113]
19. Question of Law Reserved on Acquittal [118]
20. R v YI; R v S.H. [135]
21. R v Mellifont [148]
22. R v Trainor [156]
23. Prejudice [167]
24. The effect of delay upon memories [182]
25. Section 34CB Evidence Act [187]
26. Discretionary considerations [191]
27. The changed evidentiary and procedural landscape [202]
28. No novel principle involved [223]
29. A summary of the principles applicable in this case [230]
30. The questions for decision [243]
31. The exercise of discretion [246]
32. No threat to a fair trial for the accused [253]
33. The process of balancing interests [255]
34. No stay of the proceedings [264]
The 2012 information
Under file 682 of 2012, the accused Gregory Neville Ball (the accused) has been charged on two counts as follows:-
“First Count
Statement of Offence
Persistent sexual exploitation of a child. (section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Gregory Neville Ball over a period of not less than 3 days between the 1st day of February 1986 and the 25th day of March 1988 at Ethelton, committed more than one act of sexual exploitation of K.W., a child of the age of 6, 7, or 8 years, by touching her on the vagina, inserting his finger into her vagina and rubbing her body against his genitals.
Second Count
Statement of Offence
Aggravated Indecent Assault. (Section 56(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Gregory Neville Ball on the 24th day of March 1988 at Ethelton, indecently assaulted K.W., a person of the age of 8 years.”
The accused was first arraigned on the 28th of May 2012.
The facts: a brief description
The details of the matter are that the complainant’s mother met the accused in 1985. They married in January 1986. From about August of 1985, the accused lived with the complainant and her mother at their house in Ethelton.
It is alleged that over a period of years from 1986 until March 1988, the accused sexually assaulted the complainant. It is alleged that while her mother was out of the house, the accused would rub the complainant’s body against his genitals. It is further alleged that at night the accused would go into the complainant’s bedroom and touch her on and in the vagina (count 1).
The subject of the second count is that the complainant recalls a specific incident when the accused touched her on the vagina (count 2) and this was the last incident of alleged abuse. Following this incident, the complainant’s mother told the accused to leave the home and he did so.
7 The information on summons relating to the current information was issued in the Magistrates Court on the 15th of November 2011.
The position in 1988
In 1988, proceedings were commenced against the accused alleging various counts of unlawful sexual intercourse involving the complainant. At that time, the accused instructed Mr Bob McKenney solicitor and Mr McKenney retained Mr Rick Halliday, barrister, to defend him in the proceedings. Instructions were provided by the accused to Mr McKenney and through him to Mr Halliday.
The accused asserts in an affidavit of the 9th of November 2012 (read as evidence for the purposes of this application) that at the time of the alleged offending, he was driving a tip truck unloading a ship called the “Accolade” at Port Adelaide and that he would work into the early hours of the morning, until about 2:00am or 3:00am.[1]
[1] There is no delineation in this affidavit about the ‘time of the offending’. Count one relates to a period of two years. I will infer that the accused was not working on one ship in one port for a two year period.
The accused believes that in 1988 he was able to provide work records and log books to his solicitor. There is no information deposed to within the affidavit material about what level of importance attached to those documents and what, if any, significance there is to be attached to the fact of the existence of those records. It is understandable that the accused may have wished to have regard to those records concerning the events on the 24th of March 1988. However, in his affidavit, the accused does not descend to detail to suggest that, from memory, he had work logs relating to the 24th of March 1988 which may indicate that he was not present at the time of the alleged offending concerning the second count. All that the Court is told is that the accused, his solicitor and barrister were confident of the accused being found not guilty.
The nolle prosequi
The matter was set for hearing on 31 January 1990. On that day, following a decision made by the Director of Public Prosecutions, Mr Rofe QC, on 26th January 1990, a nolle prosequi was entered in respect of all charges.
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 charges…” (R v Swingler).[2] So much is not challenged by the accused. That said, the accused points to the different legislative landscape that exists today when compared to the date of decision of Swingler and postulates the question whether the same jurisprudential basis underpins the approach of the Courts, now as then, to the question for decision in this application. I will define these questions and my response later in these reasons.
[2] (1995) 80 A Crim R 471 at 477 (Swingler).
The position since 1990
The accused says since the time that the nolle prosequi was entered that he has not given any further thought to the matter and in respect of the information concerning the current charges. He has been unable to obtain any materials from Mr Halliday, his former counsel. He has been unable to contact Mr McKenney.
In paragraph 14 of his affidavit, the accused says as follows:-
“14. 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. When these matters were previously prosecuted, I provided a lengthy and detailed statement in support of my defence to my lawyer and barrister. I no longer have any documents relating to the prosecution.”
There was no challenge to any of this evidence and the Director of Public Prosecutions (DPP) did not seek leave to cross examine the accused on his affidavit.
The accused has not informed the Court about what is his state of memory of matters now in 2012 concerning events as they occurred between 1986 and 1988. He does not inform the Court of the connection between the refreshment of any memory and any work records, diary notes, telephone records or other materials that he may have been able to obtain at the time and the preparation of his defence now. There is no clear statement by him in his affidavit that those records were previously available to him, that he had taken access to them and that they were beneficial to him in and about the preparation of his statement of evidence and in support of his defence for trial.
There may be an inference of that nature arising on the materials but in my view given the paucity of material it is difficult to precisely identify the actual importance of these matters.
I am prepared to draw the usual and reasonable inferences about difficulties arising from the effluxion of time. I accept that at the very least, because of the effluxion of time, those materials may have been of assistance to Mr Ball in the preparation of his defence. However, Mr Ball has not suggested in his affidavit that his memory of the events in 1988 is in any way impaired or that, having regard to his denial of the charges in 1988 he would now be prejudiced in making good his denials of the current charges.
The factual circumstances surrounding the current information
I will deal later with the circumstances surrounding the entry of the nolle prosequi on 31 January 1990. Before doing so, it is pertinent to identify the relevant chronology concerning the bringing of the current complaint. I am informed by the prosecution[3] of the following matters:-
[3] Affidavit of Lisa Dunlop, solicitor sworn 16 November 2012.
On or about 30 July 2008 the complainant attended at a police station to report sexual offences by her step-father (the accused) when she was a child.
Following that approach by the complainant, a police incident report was raised and a dot point statement was taken from the complainant in which she disclosed offences of indecent assault and digital rape.
The complainant informed police that the matters had previously come to trial and that she was too scared to give evidence.
At that time the complainant provided reasons to the South Australian police for her wishing to re-agitate those matters now.
The information provided by the DPP to the accused in 2012
By letter of 8 August 2012[4] exhibited to the affidavit of Lisa Dunlop affirmed 16 November 2012 and admitted into evidence for the applicant, the DPP informed the solicitors for the accused of the matters set out in the two succeeding paragraphs hereof.
[4] Exhibit LJD1 to the affidavit of Lisa Dunlop.
First, a statement of the complainant dated 6 April 2009 (page 8) setting out the complainant’s recollections of how and why the prosecution did not proceed in 1988/89.
Second, a police investigation diary entry from 30 July 2008 and a report concerning the entry of the nolle prosequi before his Honour Judge Mohr on 31 January 1990. The Director also set out details of the relevant file notes and some of the contents of those file notes made between the 22nd of August 1989 and the 26th of January 1990 (the time at which the Director made the decision to enter the nolle prosequi). Those matters are self evident.
The application for a stay
By an application dated 12 November 2012, the accused sought the following orders:-
“That the information dated the 28th of May 2012 charging one count of persistent sexual exploitation of a child and one count of aggravated indecent assault be permanently stayed.”
The particulars of the grounds are set out in bullet point form below that order sought. Those are the particulars of the matters that were canvassed before me in argument and they are dealt with in the judgment that I set out hereunder.
The application was supported by affidavits of the accused of 9 December 2012 to which reference has already been made as well as an affidavit of Emma Alexandra Wilkinson, solicitor, of 8 November 2012. I allowed the accused to read those affidavits for the purpose of this application and no objection was made by the Director through his counsel about the content of any of those affidavits.
Mr Algie SC argued[5] that the significant feature in this case is that the applicant had previously been charged with the subject offending and that a nolle prosequi had been entered. That feature, combined with the other aspects of the matter that would not severally or jointly have otherwise justified a stay of proceedings on the facts of this matter but would now justify an order for a stay, is the issue for consideration here.
[5] T4.26.
The events in 1988-1990
The accused was in 1988 charged with offending alleged[6] to have occurred between 1984 and 1986 when the victim was a female of between 6 and 8 years of age. The accused was at that time married to the victim’s mother.
[6] I do not have before me a copy of this original information.
The nolle prosequi was entered before his Honour Judge Mohr in the District Court on 31st January 1990. The chronology leading to that event was that in July or August 1989, the prosecution had attempted to proof the child complainant. The child’s mother informed the prosecution that the child became very difficult after the last proofing session, that she did not want the matter to go ahead, she did not want to see the accused again and would give evidence only if the accused was not in the Court.
A second phone call followed (on the same day it seems) from the complainant’s mother to the prosecution advising that the child was still unwilling to go to Court, she was distressed after the last occasion and wanted to know if the matter could proceed without her.
On 22nd January 1990 there was a further telephone conversation between the child’s mother and the prosecution informing them that the child did not want to come in to be proofed again or to go to Court at all. This was confirmed in a further telephone conversation on 25 January 1990.
On 26th of January 1990, the DPP, Mr Paul Rofe QC, approved a nolle prosequi on the basis that the witness was unwilling and unable to give evidence. The Court and the accused’s counsel, Mr Halliday, were notified soon after and the nolle prosequi was entered before the Court on 31st of January 1990.
I have set out earlier in this judgment the effect of a nolle prosequi, a position that pertained in 1990. There was no application on 31st January 1990 made by the accused for a late election for the matter to be heard by Judge alone, or for the empanelment of the jury. Nothing else occurred.
Mr Algie SC submitted that there was no evidence of any suggestion that these charges would be re-activated or re-laid in the future.[7] In his affidavit in support of this application, the accused stated that as far as he was concerned that (the nolle prosequi) was the end of the matter. Obviously enough, there was no evidence of what legal advice may have been received by the accused at the time. There was no evidence that the view formed by the accused was as a result of anything said or done by the DPP. In the absence of any further material, I infer that this is the position. In those circumstances, the assumption made by the accused was incorrect but nothing turns on this point and it needs no further consideration by me because the question of the expectations of an accused are not relevant considerations in this case in my opinion.
[7] T5.26 et seq.
Matters not in issue in this application
In order to properly define the issue before the Court on the stay application, in argument Mr Algie SC for the applicant accused Mr Ball (the accused) conceded the following matters:-
Delay alone will rarely, if ever, result in a stay;[8][9]
[8] T3.32.
By legislative amendment in 2003, Parliament removed what was previously the limitation or bar to proceeding to prosecute the type of offences alleged against the accused, and Parliament was prepared to countenance matters going to trial where significant delay impacted upon the trial as well as upon the evidence that might be available in such a trial;[10]
[10] T3.31-T4.4.
Parliament has made inroads into the procedural protections that were previously available to people accused of these types of offending. In particular s50 of the Criminal Law Consolidation Act, alleging persistent sexual exploitation of a child is a recent section enacted by Parliament and is specifically enacted to have retrospective effect;[11]
[11] T4.6-13.
Accused people frequently stand trial in respect of alleged sexual offending that happened many years ago and those people may be charged with an offence under s50 of the Criminal Law Consolidation Act although at the time, such an offence did not exist but now does exist and has operation because of its retrospective effect;[12]
[12] T4.14-18.
There has been a change of law by virtue of the amendments to the Evidence Act in relation to the particular warnings that may be given by a trial Judge in order to ensure a fair trial.[13]
[13] T4.20-23.
I will take these matters into account in reaching my decision in this matter.
The questions for decision
Mr Algie SC then submitted that the significant feature of the case before the Court, that underlies the whole application, is that unlike the usual case in relation to the question of a stay, there is a particular matter that sets this case apart. That matter is that this is not the first time that the applicant has been charged with the offending and brought before the Court in respect of this offending.
Mr Algie SC submitted that this was a significant factor that underlies the entire application and that feature does not permit the putting aside of the various other features as might be the case if (for example), now, for the first time the applicant was charged with offences alleged to have occurred between 1986 and 1988.[14]
[14] This includes one or other or a combination of the changed legislative landscape.
As I understand the submissions of Mr Algie SC, the position put by the accused is that because the applicant had previously been charged with the offending and is now charged again with the same offending then two possible arguments may follow. 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 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.
Result
For the reasons which I set out hereunder, I am unable to accept the first proposition deriving from the submission made by Mr Algie SC about the basis that underlies the application.
Also, for the reasons set out hereunder, I am unable to accept the second basis as outlined by Mr Algie SC because, in my opinion, in the application of principle, no or no sufficient basis has been made out to attract the sanction by the Court of a stay of these proceedings.
The power of the District Court to permanently stay criminal proceedings
For all of the reasons set out hereunder, it is my view that Judge Soulio of this Court, in his decision of R v Jacobi,[15] has enunciated the approach that I am to take in the determination of this matter. That approach was approved by the Court of Criminal Appeal in an appeal from his Honour’s judgement[16] and in relation thereto, it is appropriate that I reproduce a portion of the judgment of Justice Nicholson in the Appeal Court, which judgment derives from the judgment of Judge Soulio. It is as follows:-
[15] [2012] SADC 92.
[16] [2012] SASCFC 115.
“[66] The learned Judge, after stating some preliminaries, discussed with reference to relevant authorities the power available to the District Court to permanently stay criminal proceedings in circumstances where to continue with those proceedings would constitute an abuse of process and the basis upon which such a stay might be granted.[17] His Honour observed that the court is to undertake a two stage process; first, to determine whether any unfairness, injustice, prejudice or oppression to an applicant has been established sufficient to enliven the power to stay the proceedings and second, to engage in a balancing exercise between the requirements of fairness to such an applicant (informed by the matters identified in the first stage) and the legitimate public interest in continuing with the proceedings. His Honour referred to the following, authoritative and often cited, statement in Walton v Gardiner.[18]
[17] At [6]-[23].
[18] (1993) 177 CLR 378 at 395-396 (Mason CJ, Deane and Dawson JJ).
As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of 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, and the need to maintain public confidence in the administration of justice. (Citation omitted.)
[67] His Honour also referred to the well accepted propositions: that the power to order a permanent stay is discretionary, to be exercised sparingly and only in exceptional or extreme cases; that the onus of satisfying a court of an abuse of process lies on the party alleging it; and that this onus is a heavy one to discharge.[19]
[19] See generally Williams v Spautz (1992) 174 CLR 509 and Jago v District Court of New South Wales & Ors (1989) 168 CLR 23.
[68] As the Judge also noted, the categories of cases in which the inherent power to stay proceedings might be enlivened cannot be precisely delineated[20] and the exercise of the power to stay does not require a finding that proceedings are being pursued for an improper purpose or for frivolous, vexatious or oppressive purposes.[21] Nevertheless, and again as his Honour observed,[22] a permanent stay based on an abuse of process is a remedy of last resort and it must be demonstrated that it is the only remedy available in order to prevent the abuse that has been identified.[23]
[20] Jago at 74 (Gaudron J).
[21] Williams, above and Walton, above at 392-393 (Mason CJ, Deane and Dawson JJ).
[22] [2012] SADC 92 at [91].
[23] Williams, above at 529 (Mason CJ, Dawson, Toohey and McHugh JJ).
[69] His Honour has correctly stated the legal principles relevant to an application of this nature and the appellant has not suggested to the contrary.”[24]
[24] In the written outline of argument before this Court at [26] the appellant accepted that his Honour applied the correct principles in approaching the balancing exercise necessary to the decision of whether or not to grant a permanent stay.
I turn then to the submissions put to me on behalf of the accused. Those submissions generally focus upon the peculiar facts of this matter and in particular the factual circumstance that this matter was listed for trial in 1990, the trial date was reached but a nolle prosequi was entered on the first day of the trial.
The essential question for my consideration is whether, in the application of principle, the peculiar facts surrounding this particular matter are to be given any different weight and if so, what, by virtue of that fact as well as the other matters identified within the application, particularly the prejudice allegedly suffered by the accused.
I will therefore deal in turn with each of the submissions made to me by counsel for the accused, Mr Algie SC. I will also consider the combined effect of those submissions.
R v JCM
Mr Algie SC first relied upon the decision of Judge White sitting as the District Court in Cairns Queensland in R v JCM.[25] This case concerned an indictment filed in 2007 in respect of offending alleged to have occurred in 1985 and in part, that had been the subject of previous charges.
[25] [2007] QDC 211.
The relevant facts were that on the 17th of June 1985, JCM was charged on one indictment with 11 counts involving offences of a sexual nature; 5 in relation to the first complainant, 3 in relation to a second complainant and 3 in relation to a third complainant. All of the alleged victims were children who were under the age of 16 years, and all of the charges were of an extremely serious nature.
There was later a separate indictment issued in relation to the third complainant, but in respect of the same offences as previously charged. The Court file did not disclose whether this had occurred as a result of an Order for severance or for any other particular reason.
In 1986, the trial proceeded, the prosecution presented its evidence and a no case to answer submission was put by the defence on the basis of s632 of the Criminal Code (as that relevant provision then subsisted).[26]
[26] s632. A person may be convicted of an offence on the uncorroborated testimony of an accomplice or accomplices, but the Court shall warn the jury of the danger of acting on such testimony unless they find that it is corroborated in some material particular by other evidence implicating that person.
The defendant submitted that under s632 of the Criminal Code and because of the separate indictment relating to the third complainant, then the third complainant was an accomplice and there was no evidence which could amount to corroboration of that complainant’s account. The trial Judge agreed and ruled that there was no case to answer. A nolle prosequi was then entered in respect of the first and second complainants on the basis that the result in those matters would have been the same.
Of the 7 complainants before the Court in 2007, 3 of the counts that were the subject of the indictment were identical to the matters dealt with in 1985. This, it was contended for the accused, was an abuse of process in respect of the Court hearing a prosecution arising out of the factual matters concerning those three complainants where (inferentially in respect of all these but certainly in respect of one) the Court had made a finding of no case to answer in 1986.
In 1986, the prosecution asked for the return of the indictments and endorsed upon them that the Crown would not proceed further upon them. This, I am told, has the same effect as the prosecution entering a nolle prosequi at the time when the prosecution became aware that the prosecution’s case would not succeed. Judge White accepted the accused’s application for dismissal on grounds of ‘no case to answer’ in relation to those counts and at paragraph 9 expressed the following views:-
“[9] In my view the only possible inference to be drawn from the conduct of the Crown Prosecutor in 1986 is that he accepted that convictions could not be obtained on any of the counts charged and he therefore effectively withdrew the indictments. The accused and his counsel were entitled to believe that the prosecutor was acting in good faith when he asked for the return of the indictments. I have no doubt that Mr Davey, the prosecutor in 1986, was acting in good faith. In my view it would be an abuse of process for the prosecution to be permitted to now proceed in respect of the relevant counts on the current indictment before the court simply taking advantage of a change in the law which occurred 11 years after the indictments were effectively withdrawn. I order that proceedings in respect of counts 5 to 12, 24 to 31, and 32 to 35 inclusive be permanently stayed.”
It is immediately to be seen that, different from this case, a conviction on the three counts could not be obtained in 1986 because, as a matter of law, a conviction against the accused was not possible because of the peculiar circumstances arising out of the separate indictments of the first, second and third complainants respectively and the rule concerning corroboration.
This was because, as a technical rule, the prosecution chose to present the indictments and to proceed separately against the accused in relation to the group of offences relating to one complainant. On that basis (i.e. as a result of the operation of the technical rules and the state of the law of Queensland at the time) the learned trial Judge ruled in 1986 that there was no case to answer.
In that background, the indictments were withdrawn because, technically, it was not possible to obtain a conviction. That is not this case. And there is nothing within the material before me to indicate that there was any basis for the decision of the DPP to enter a nolle prosequi in this case apart from the juvenile status of the complainant.
This decision of White DCJ turns on the question of the exercise of his Honour’s discretion in the peculiar factual circumstances of that case. It is sufficient to say that the facts of this matter are sufficiently distinct from those in R v JCM, that whatever ratio may be derived from that case, it does not bind me here and that decision does not assist in the resolution of this matter because of the historical, factual, procedural and statutory differences that are involved.
R v Glencross
Mr Algie’s next submission concerned the application of the decision of the Court of Criminal Appeal in R v Glencross (1999-2000) 2006 LSJS 158, an authority that was referred to by the prosecution.
In that case, the judgment of the Court was given by Bleby J, with whom the other Justices (Lander J and Wicks J) agreed.
The relevant facts were that the appellant appealed against the refusal of a Judge of the District Court to grant a permanent stay of criminal proceedings against him on the ground of abuse of process. He was charged with 8 offences. 5 of them were alleged to have occurred in June or July 1992. They were three counts of unlawful sexual intercourse with a person above the age of 12 and under the age of 17 (s49(3) Criminal Law Consolidation Act 1935), 1 charge of inducing a child to expose his body with a view to gratifying prurient interest (s58A(1)(b) Criminal Law Consolidation Act 1935) and 1 count of indecent assault (s56 Criminal Law Consolidation Act 1935). The 7 counts of sexual offences were laid in September 1993. AB was a victim named in 4 of the counts for a period between 1 June 1992 to 11 April 1993 and those counts were based on a statement that AB gave to police on 13 September 1993 after he was approached and interviewed because he had been identified as one of a number of boys depicted in sexually explicit photographs.
The statement that AB gave to police was incomplete and he did not keep appointments to finish the statement. He refused to do so.
Following the failure of AB to cooperate with police, a second police information alleging 7 counts of sexual offences was laid in the Magistrates Court against the accused and 2 other persons. The victims did not include AB.
On 14 January 1994, the DPP wrote to the accused’s solicitors confirming that it was his intention not to proceed with the first information against the accused.
On 19 January 1994, the accused’s solicitors wrote to one of the investigating police officers and said that they had received specific instructions from the accused that he did not wish charges to be laid against AB in respect of the accused’s allegations. The allegations related to a visit the accused alleged AB came to his home on 24 November 2003 when AB was alleged to have forced his way into the accused’s home, asked for money and then when his request was refused assaulted the accused with a broom handle.
On 30 March 1994, the second information was dismissed on a submission of no case to answer.
On 28 July 1997 AB gave a second statement to the police alleging sexual offences by the accused. This statement covered much of the period of the first statement to the police in 1993 but made no fresh allegations against the accused. The victim said that he did not complete his statement earlier because he was extremely distressed and made a decision not to continue the statement and did not realise that the investigation could not continue.
At the time that AB gave his second statement he was by then 19 years of age.
The Court held, consistent with Jago at 58 per Deane J, Mason CJ at pages 30-34 and Brennan J at 47-50, Walton v Gardiner (1993) 177 CLR 378 at 393-394, that the proceedings were not unjust and unfair, were not foredoomed to fail, the Court is an appropriate forum and it was not sought to litigate anew a case that had already been disposed of by earlier proceedings.
Bleby J at paragraph [7] of the judgment (1999-2000) LSJS 158 at 164-165 held as follows:-
“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 upon 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 forms. Other material had not been made available at all and so far as then known to the police, AB was an unwilling and possibly untruthful witness. In my opinion it cannot be said, in light of those circumstances alone that a decision to proceed some years after all of the facts are known and when an unwilling 15 year old has become a more mature 19 year old, in itself constitutes an abuse of process… given the age of AB at the time, his immaturity and his obvious reluctance for a host of possible reasons, to relive his experience, if true, it was a responsible decision. Evidence available in 1997 suggests that in 1993 AB was distressed, upset and embarrassed by what had happened. The withdrawal of the prosecution was not done with any undertaking or promise not to prosecute in the future… the only apparent purpose of the present prosecution is to seek to bring to justice a person charged with some very serious offences. The public interest in seeing that justice is done, whatever the result, requires that the trial proceed unless there is some truly compelling reasons such that, however the trial is conducted, it cannot now be fair to the appellant.
There may always be some degree of unfairness as a result of fading or distorted memories by reason of delay in a trial. However, as I have pointed out, delay in itself is insufficient. Indeed, in some circumstances such factors can be of advantage to a defendant bearing in mind the criminal standard of proof.”
Mr Algie SC sought to distinguish this decision on a number of grounds. First, in Glencross the accused did not stand trial and the discontinuance occurred in the committal process.
In my opinion, this is not really a point of distinction unless it can be shown that there is some particular feature of the point at which prosecution is reached, that means that a discontinuance on proper grounds after that time can be viewed in the same way as the same event occurring in the same circumstances before that time. No such circumstances were put to me.
In my view, if there is a point of distinction, it is of a minor and negligible weight and does not to require further consideration.
Mr Algie’s second point of distinction was that, as reported by Bleby J on page 7 of the judgment, in Glencross the prosecuting authorities did not have all the relevant material at the time of the discontinuance because there, the complainant refused to complete his statement and sign it.
In my view, that circumstance is not so different from a case where, as here, a child of 8 years at the time of offending and 11 at the time of the trial, was unable to complete a proofing process or to give evidence because of her fear of the Court process. That difference is not sufficient to constitute a point of distinction.
In Glencross and in this case, the common feature is that once the complainant attained more mature years, they both wished to pursue matters that they could not confront when they both lacked that maturity.
Finally, Mr Algie submitted in respect of Glencross that there, but not in this case, no excuse or explanation was provided. In my view, that is not a point of distinction. Leaving aside the facts in Glencross, the position here is that it is apparent that the complainant, many years later, wishes to pursue the matter about which complaint was made when she was an 8 year old child. It will not be in every case that any particular reason is or needs to be proffered over and above the facts of the matter. In some circumstances, an explanation may be appropriate. In my view, in Glencross, the Court of Criminal Appeal was not establishing and did not purport to establish any particular binding rule. Such an approach may also be seen to be inconsistent with the Court’s unfettered discretion in this matter in any event.
In my view, the facts of the matter are slightly removed from those under consideration in Glencross, however the importance of Glencross is the application of principle. The Court held that the combination of the ascertainment of further material facts, combined with the increased age of the complainant would mean that “…in light of those circumstances alone…” there was no abuse of process. In my view, this passage is confirmatory of the intention of the Court to maintain the breadth of its discretionary jurisdiction. In Glencross, the Court also weighed in the balance the fact that the accused had lost an opportunity to investigate matters relating to the complainant’s credibility but still rejected the application.
R v Swingler
Mr Algie SC then addressed the decision of the Court of Appeal of Victoria in Re Alan Edward Swingler.[27]
[27] (1995) 80 A Crim R at page 471 (Swingler).
The relevant facts of the matter were that the applicant was presented on 9 counts relating to sexual offences against 4 young victims. The Judge ordered severance of the presentment and separate trials in counts relating to each victim. On the first day of trial Swingler pleaded not guilty and was subsequently convicted. On the following day he pleaded guilty to other counts involving the second and third victims and the applicant’s counsel applied for an Order permanently staying the proceedings in relation to certain counts regarding a fourth victim as a nolle prosequi had previously been entered by the prosecution in respect of that charge some six and a half years earlier. This had occurred in an earlier proceeding of some of the same charges.
The application was refused and the applicant pleaded guilty to the balance of the presentment. He was found to be a serious sexual offender and sentenced to an effective sentence of 7 years imprisonment. There was an application for leave to appeal against conviction.
The Appeal Court held in relation to the previous entry of a nolle prosequi, that it would place an intolerable fetter on the exercise of 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. The Appeal Court held that it cannot be said that there can never be a case where the exercise of the power to make a 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 processes. The categories of abuse are never closed. This particular case was not such a case.
The pertinent matter here is that the Appeal Court decided to dismiss the application for leave to appeal against conviction on the grounds of an alleged abuse of process for allowing particular counts (8-14) to proceed.
Counts 8-14 had been the subject of earlier charges (six and a half years earlier) and in respect of which a nolle prosequi had been entered by the DPP and announced in Court. The application for a stay appears to have proceeded almost entirely on the basis of delay. The trial Judge refused the application relying in large part on his capacity to give appropriate directions to the jury. The appeal argument centred on the issue of prosecutorial discretion namely:-
“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 issued a nolle prosequi.”
The Court of Appeal of Victoria held the following:-[28]
[28] At 479-80.
“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 previously been 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: Davis v Gel (1924) 35 CLR 275 at 287 per Issacs ACJ. It is an act “well understood at common law to amount to a termination of proceedings without an adjudication and creating no bar to a subsequent suit.” Broome v Chenoweth (1946) 73 CLR 583-599 per Dixon J. Although as we have been told it is an act which at least in Victoria normally leads to a termination of proceedings it does not and cannot carry with it a promise or representation of immunity from suit… there are many reasons why the prosecuting authority might choose to enter into 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.
The decision made by the prosecuting authority to prosecute or decline to prosecute is a decision made in the exercise of prosecutorial discretion. It is a discretion usually exercised without publication of an attendant reasons… the application for a nolle prosequi was made available to the trial Judge and was exhibit A on the application before him. The application was before this Court as well. The application proceeded on the basis that the allegations (i.e. the subject of counts 8-14) were unfounded and untrue and made against a man of “unblemished character”. By the time the applicant was re-presented it was known to the prosecuting authority that other victims had complained about the applicant’s conduct in respect of events which, if true, must have been well known to the applicant at the time when he presented his application for a nolle prosequi. As it turned out these allegations were established at trial either by a plea or verdict. These factors also could prove legitimate reasons, in our view, to a prosecuting authority for a decision to re-present for trial notwithstanding the entry of a nolle prosequi in relation to an earlier presentment.”
The submission by Mr Algie SC was that different from this case there was an identifiable reason or ground in Swingler to re-lay the charge.[29] On a proper reading of what fell from the Court of Appeal of Victoria in Swingler, the passages which I have quoted do not support the submission of Mr Algie SC. The Court of Appeal appears to have deliberately used language of a possibility (“…also could provide…”) and not the language of a determinative certainty or of a particular factor (alone or in combination) that tips the balance in one direction or the other. That circumstance therefore rises no higher than a matter that a Court could take into account. That is particularly so because, in that case, the nolle prosequi was entered after an application was received from Swingler to enter the nolle prosequi, Swingler held himself out as a man of unblemished character, that the allegations were unfounded and untrue and it was on that basis that the nolle prosequi should be entered.
[29] T13.3-10.
In my opinion, the inclusion of that view as expressed by the Court of Appeal does not add to the matters that are required to be taken into account in the exercise of the Court’s discretion nor does it detract from the general principles as adumbrated by the Court in that judgment. The judgment of the Court of Appeal does not assist the applicant’s case in this matter.
Speculation as to views in 1990
Mr Algie SC’s next submission was that it was necessary to canvass the facts and background of this matter as they existed in 1990. Mr Algie suggested[30] that it is doubtful that the Court recognised that it had the power to interfere with the discretion or prerogative of the DPP to enter a nolle prosequi at a stage prior to the verdict.
[30] T13.31-34.
It is unclear to me whether this is or was in fact the case. There is no evidence one way or the other on this point. I am unable to give that submission any particular weight.
R v Jell
Mr Algie SC then made reference to the Court of Criminal Appeal of Queensland’s decision in R v Jell[31] where the Court decided that in a proper execution of the Court’s control of its own processes, the Court was always in a position to prevent a nolle prosequi from being entered by the Crown in order to prevent an abuse of process.
[31] (1990) 46 A Crim R 261.
In Jell, the Court of Appeal agreed that the entry of the nolle prosequi in the circumstances of that case would amount to an oppression of the accused. The accused had been a book-keeper who had allegedly dishonestly applied to her own use money belonging to her employer. The prosecution were unable to prove that the monies dishonestly applied were, at the relevant times, the property of the employer because title had passed to the accused. The prosecution did not attempt to allege fraudulent conversion until very late in the proceedings and that change was not put to the jury who were directed by the trial Judge that the accused could not have committed the offences charged.
Obviously enough, the issue before the Court of Criminal Appeal of Queensland turned on technical issues but on the point of the nolle prosequi, the ratio of the decision is to be found in passages at T276-277 of the judgment of the Court as follows:-
“the prospect of subjecting an accused person sequentially to a trial, a termination of it by nolle prosequi at the death when the Crown receives an adverse legal ruling, a reference to the Court of Criminal Appeal and the provision of an opinion by that Court and another trial on the same basis if the Crown was entirely correct in the first place, or upon a varied basis if that seems open after obtaining the further opinion, is an unattractive one. Speaking generally, I think it is preferable that the community in the legal system suffer the occasional unjustified acquittal than that the accused persons face a barrage of legal procedures upon their counsel successfully raising a point. Obviously there is a question of degree involved and I am speaking only of points which arise when it may fairly be said that the accused person has had his trial. Generally speaking, a trial Judge ought not to prevent the entry of a nolle prosequi at any stage of the trial unless if its entry is plainly a vehicle of extreme oppression.”
Different from the facts in Jell, the circumstances of this case, the accused person has not in any sense “… had his trial…” and on materials put before me, there is no evidence that the use of the nolle prosequi in this case was “…plainly a vehicle of extreme oppression…”
Questions of Law Reserved on Acquittal
Reference was then made to the South Australian Court of Criminal Appeal decision in Question of Law Reserved on Acquittal reported in (1996) 66 SASR 450. The case stated was referred to the Appeal Court on two case stated questions by the trial Judge, Mohr J, under s351(1)(a) of the Criminal Law Consolidation Act 1935. The two questions in the case stated were:-
Whether a Judge can refuse to accept a nolle prosequi and, if so,
Whether there are limitations on the power to do so.
Both questions were answered in the affirmative.[32] The leading decision was given by Debelle J with whom Mullighan and Nyland JJ agreed although Mullighan J expressed his views in a short separate judgment.
[32] The decision has been criticised on a technical basis – the first question and hence the two responses are not questions of law for s351(a) of the Criminal Law Consolidation Act; See R v B (1998) 194 CLR 566.
The facts were that on the day fixed for the trial of serious sexual offences alleged against the accused, the complainant and her mother failed to attend Court to give evidence. The trial Judge refused to accept a nolle prosequi that the prosecutor sought to enter. The accused sought and was granted a trial by Judge alone; he was arraigned and he pleaded not guilty; no evidence was tendered by the prosecution and on the direction of the trial Judge, the accused was found not guilty on all charges.
The Court held that in the circumstances of the entry of a nolle prosequi amounting to an abuse of process, the Court may intervene at the time that the prosecutor seeks to enter a nolle prosequi and not when, for example, a prosecutor presents a subsequent information on the same factual basis.
In assessing the nature of the decision, the following passages from the judgment of Debelle J and Mullighan J are instructive.
Debelle J held at page 469-70 as follows:-
“The circumstances which will give rise to an abuse of process where it is sought to enter a nolle prosequi are varied. It is for that reason that I have recited, at perhaps too great a length, the facts and reasons in most of the reported decisions in this country.
There is, therefore, a substantial body of judicial opinion in this country to the effect that, in the exercise of the inherent jurisdiction to prevent abuse of process, the court may in exceptional cases refuse to accept the entry of a nolle prosequi. The cases in which it will do so have been characterised as extreme, exceptional or rare. The choice of epithet should not obscure the fact that the jurisdiction is one which courts will be slow to exercise.
There will be occasions where it would be proper to allow the entry of a nolle prosequi. Some were identified by King CJ in Rona v District Court (SA).
In R v Catanzariti (1995) 65 SASR 201 it was held that there was no abuse in filing a new information where there had been no previous directions about any time limits for amendments.”
Mullighan J held at page 452-453 as follows:-
“In my view, it is not appropriate that only the procedure of a stay of the trial of a subsequent information should be used to protect the process of the court from abuse and an accused from oppression and injustice. Once there is an abuse of process, the court should then intervene.
I would not want the resolution of the issues raised by this case stated to be interpreted as approval by this Court of the manner in which the learned trial judge exercised his discretion. It is unnecessary for present purposes to consider that matter. I merely wish to say that it should be a rare case that the discretion would be exercised against the prosecution merely because the principal Crown witness had not attended court. There may be all sorts of reasons for such nonattendance and observance of case-flow management principles should not usually prevail over principles of fairness and justice. The community has a legitimate expectation that those who have committed crime will be brought to justice and the unexplained absence of a crucial witness should not be a reason to frustrate that expectation in the usual course of events. I do not understand anything said by the court in Rona to be contrary to that view. Usually a short adjournment should be granted to ascertain the reason for the non-attendance and to ascertain whether the witness can attend the trial.”
Both of their Honours referred to and repeated portions of the judgment of King CJ in Rona (at 228-229) the relevant portions of which are as follows:-
“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. Where, however, there are no such reasons and the power to enter a nolle prosequi is used in a manner which would operate oppressively to the accused or would amount to defiance of procedural directions given by the court, there must be a serious question as to whether the court may not protect its process from abuse by declining to accept the nolle prosequi.”[33] (My emphasis).
[33] Rona v District Court (SA) (1994) 63 SASR 223 at 228-229.
King CJ was of the view that if there was no valid reason why a nolle prosequi should be accepted because the prosecution did not wish to proceed and there is no valid reason why the accused should remain exposed to prosecution in respect of the alleged conduct, or there are serious questions which arise in respect of the continuation of the prosecution, the Court may decline to accept the nolle prosequi. Absent such reasons, and if the power to enter into a nolle prosequi is used in a manner that would operate oppressively to an accused or amount to a defiance of procedural directions, the Court may decline to enter a nolle prosequi.
It was in light of what fell from King CJ in Rona that the Court of Criminal Appeal made its decision in Question of Law Reserved on Acquittal.[34]
[34] Supra.
Different from those cases, in this case the nolle prosequi was entered without challenge but leaving that matter aside I address the argument that it may be said that there is no valid reason why this accused should remain exposed to prosecution in respect of the alleged conduct.
In my opinion, the judgment of King CJ in Rona and the Court of Criminal Appeal in Questions of Law Reserved did not foreclose upon any circumstance or combination of circumstances that may amount to a reason why and for how long an accused may remain exposed to prosecution in respect of alleged conduct. And even where King CJ considered the position where there was an absence of reasons and there was other disentitling conduct, his Honour did not state an absolute but used a guarded form of expression namely “…there must be a serious question as to whether the Court may not protect its process from abuse by declining to accept a nolle prosequi…”[35]
[35] Rona at 228-229.
This form of wording used by King CJ has quite evidently influenced the decision of the Court of Criminal Appeal in Question of Law Reserved No. 3, especially at page 469 and the matter that a Court may take into account in the determining of the one of those “… extreme, exceptional and rare… cases”. Those expressions derive from well settled authorities and the matters for determination surrounding the application of those authorities to the relevant facts of the matter before the Court. This includes in this context the matters that fell from King CJ in Rona.
As important is the fact that the Court was of the view that the power was one that the Courts will be slow to exercise.
R v YI; R v S.H.
Mr Algie SC then submitted that the power to decline to accept the nolle prosequi has been acknowledged and utilised in a number of decided cases. He referred to R v YI [2004] ACTSC 115 (27 October 2004). The facts of the case were as follows. In October 2004 the accused was arraigned on 2 counts alleging assault or common assault upon her step-son who was only 6 years of age. The accused counsel indicated that he would challenge the child’s competence to give sworn evidence against his step-mother in circumstances where the child was now back living with his father and step-mother. The child was separately represented. Psychiatric evidence was called and the view expressed by the expert psychiatrist was that if the step-son perceived that his natural mother wanted him to give evidence of one kind but in doing so might hurt his step-mother and perhaps indirectly his father, he could suffer substantial stress. The Court decided that the child was a compellable witness and then decided that it would exclude particular evidence of the child’s contemporaneous complaint which had been reduced to writing under the rules equivalent to the Commonwealth Evidence Act.
Following that ruling, the Crown applied for an order that the jury be discharged and the proceeding be adjourned pending the provision of written reasons by the Judge on the issue of compellability. The Judge refused that application. The Crown prosecutor then sought to present a notice to the effect of a nolle prosequi under s7(6) of the relevant Act of the ACT, declining to proceed further with the prosecution. The Court ruled that this constituted an abuse of process and refused to permit it to be entered into the records.
The decision of the trial Judge relevantly turned on the question of whether the Court would permit the DPP to adopt a procedure formerly used in Queensland of entering a nolle prosequi and mounting a challenge to the directions of the trial Judge before a Court of Appeal. The application was refused on the basis that the suggested procedure was tantamount to an abuse of process.
In particular, the trial Judge, Crispin J was of the view that the ACT Human Rights Act was of relevance an application and held as follows at paragraph [90]:-
“[90] In this Territory, the right to have criminal charges decided by a court or tribunal after a fair and public hearing is now expressly recognised in s 21 of the Human Rights Act and the right recognised by s 22 to be tried without unreasonable delay plainly extends to a right to have the charges determined at the trial. In my opinion, those rights would have been unjustifiably infringed by the course proposed.”
That is not this case. I obtain no assistance from that decision because it turns on its own particular facts and circumstances as well as on the legislative scheme applicable in the A.C.T.
Mr Algie SC then referred to R v SH [2009] ACTSC 50 (8 May 2009). The case concerned an indictment presented on the 9th of April 2008 charging the accused with 5 counts of allegedly indecently assaulting a 10 year old girl. On 22 September 2008 the DPP lodged a notice to the equivalent effect of a nolle prosequi. The following day the accused counsel submitted that the Court had a discretion to decline to accept the notice and instead to direct a verdict of acquittal.
After canvassing all of the relevant authorities such as Jell, Jago, Question of Law Reserved on Acquittal (No. 3 of 1995), R v YI, the trial Judge, Higgins CJ weighed in the balance the competing interests of the rights of the accused and the administration of justice. His Honour found as follows:-
“[16] The director has presented the Notice on the ground that, a witness, vital to proof of the case, had declined to give evidence. It is regarded by the DPP as inappropriate to seek to compel that witness to testify. That decision is, in my view, a reasonable one in the circumstances as I understand them to be.
[17] Counsel for the accused points out that to do otherwise than to compel the Crown to submit to a verdict leaves a “sword of Damocles” above the head of the accused ready to descend in the event, apparently unlikely, that the witness changes her mind about giving oral testimony.
[18] That situation it is contended, engages s 22(2)(c) of the HR Act, namely, the right to be tried without unreasonable delay.
[19] It is to be observed that the rights conferred by the HR Act and, in particular s 22, are not absolute. Section 28 affirms that rights otherwise guaranteed by the HR Act may be subject to “reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society”.
[20] Thus, for example, the fact that a criminal allegation surfaces many years after the events to which it relates does not preclude the prosecution of it, subject to the usual constraints (see for example, Longman v The Queen (1989) 168 CLR 79).
[21] In this case, the allegations relate to events allegedly occurring at the earliest in 2003 and 2007 at the latest.
[22] The committal to this Court occurred on 27 February 2008 in respect of two more recent allegations (of 3 March 2007). The indictment is dated 9 April 2008. It contains counts not the subject of the committal proceedings and relating to events in 2003.
[23] It is clear that there may be issues, even apart from the refusal of the complainant to give evidence, that might stand in the way of the trial of that indictment. For instance, should there be a Basha inquiry concerning the allegations not the subject of committal?
[24] On the other hand, the cause of the reluctance on the part of the complainant to give evidence is not known. She may have no evidence to give that would assist the prosecution. Some witnesses in her situation might be too traumatised to give evidence. In my view, it would not be in the interests of justice to absolutely foreclose upon any reasonable chance that she might become willing or able to testify.”
His Honour did not refuse to accept the nolle prosequi but made an order that no proceedings in respect of the matter therein charged be taken without leave of the Court.[36]
[36] At [25].
To an extent, Chief Justice Higgins’ decision is not “on all fours” with the approach of Crispin J in R v YI because, different from Crispin J, Chief Justice Higgins was prepared to contemplate an arrangement that did not foreclose the position of the prosecution.
For those reasons alone, the authority is of little assistance. It is also not clear to what extent the Human Rights Act of the A.C.T. was influential upon his Honour’s decision.
In the result, I obtain little or no assistance from that decision. It is clear that Higgins CJ was not prepared to foreclose on any particular matter or thing as carrying any particular weight or significance. Consistent with the practice of all Courts, Higgins CJ was not prepared in any way to limit the discretion of the Court in any circumstances.
Similarly, matters that a Court may take into account in the exercise of its discretion are not limited and the Court may from time-to-time develop guidelines only about the exercise of that discretion that are not rules of confinement of the breadth of the discretion.
R v Mellifont
Mr Algie SC then referred to the decision of Justice Derrington in R v Mellifont.[37] This case concerned an application for a permanent stay of criminal proceedings on an indictment for perjury. The same indictment had previously been presented and at the hearing on the first indictment, the point had been reached where a determination had been made by the trial Judge which decisively favoured the accused. At that time, the prosecution sought and was granted permission to enter a nolle prosequi. The prosecution announced its intention to seek a review of the decision of the trial Judge before the Court of Appeal. The Court of Appeal found that the decision of the trial Judge was founded on wrong principle but, in the overall circumstances of that matter, that was not fatal to the accused.
[37] (1992) 64 A Crim R 75.
The basis of the stay application was abuse of process and the alleged unfairness and oppression of double jeopardy based upon the first proceedings.
Justice Derrington considered all of the relevant authorities on the topic and in particular he identified that: “…the touchstone in every case is fairness…”[38]
[38] Per Mason CJ in Jago at page 33; 313-314.
Justice Derrington expressed his decision on the issue before him as follow:-
“In the present case, because the trial had advanced so far that a determination had been made in favour of the applicant on a decisive issue, he had not only been put in jeopardy within the meaning of that principle, but the nature of its jeopardy and its extent were of a high order. The present case might be regarded as one of those rare and extreme cases where the necessary degree is achieved because of the peculiar circumstances.
In this conclusion, little weight has been given to the length of the first part of his original trial or even to the fact that it involved two stages. However, he was entitled to contest the matter to the point of obtaining an acquittal at the end of the hearing. It would in these circumstances be unfair to subject him to the rigours and stress of a further trial in the absence of a conviction on the first trial. In those circumstances a stay should be granted.”[39]
[39] Ibid at page 81.
In my view, the decision in Mellifont provides little, if any, assistance to the accused Mr Ball. The case turned on its peculiar facts as I have set them out above and leaves open the issues that may be taken into account in the exercise of the Court’s discretion.
In that case, Mr Mellifont had achieved the position of a virtual acquittal because after he had obtained the benefit of the determination of the trial Judge, the position would ordinarily be that the accused had the right to seek a directed verdict from the trial Judge.
It was only then that the prosecution entered a nolle prosequi. This was over the objection of the accused and that objection was met by the submission of the prosecution that questions of abuse of process in the prosecution of a fresh indictment could be argued if and when the new indictment was presented. This submission failed.
R v Trainor
Mr Algie SC then referred to the decision of the Queen v Craig Anthony Trainor.[40] The issue in the case was a prosecution for assault that, when reached, (it had been set for trial three months earlier) did not proceed after the prosecution failed in its attempt to obtain an adjournment because some police witnesses (and importantly not the complainant and his employee who were the vital witness in the prosecution case) were unavailable.
[40] (1991) 56 A Crim R 102.
After the adverse ruling by the Magistrate refusing the application by the prosecution for an adjournment, an agreement was created by the prosecution and the accused that was signed by all parties and that recorded that if the prosecution led no evidence, then the accused would make no claim for costs and expenses. The terms of the agreement are set out in the judgment. By its nature, the agreement appears to be on a pro forma document obtained from police records. It is an obvious inference that this was a standard document kept for such purposes.
After those events and sometime later, the prosecution reinstated the charge. There was a trial and the accused was found guilty. A matter of significance in relation to the second trial was that a witness who was available to the accused to be called at the first trial, if it proceeded, had moved away and was out of contact and could not be called by the accused.
The Court of Appeal of Queensland held that the second prosecution, in those circumstances, was an abuse of process. Perhaps unfortunately, each of the Justices of Appeal delivered a separate judgment.
Justice Derrington expressed the view that the decision, on its merits, to refuse an adjournment application led to the prosecution’s refraining from advancing any evidence. It was that determination, in those factual circumstances, that means that it would be an abuse of process to proceed. Importantly, after this discussion, his Honour added: “It would not necessarily be so otherwise…” This approach by his Honour is consistent with the general approach of the Courts in relation to the question of an exercise of discretion that I have set out above.
Justice Ambrose considered aspects of promissory estoppel arising from the fact of the agreement as being influential in considering whether the second complaint amounted to an abuse of process.
Ultimately, his Honour’s decision turned on questions of fairness because the accused was not in a position to call a vital witness at the second hearing when that witness was present and available to give evidence at the first hearing. In those circumstances, the second trial was unfair. That level of unfairness was sufficient to constitute an abuse of process.
Justice Dowsett was of the view that the agreement between the prosecution and the accused had to be honoured because it, expressly or impliedly, disclosed a mutual intention of the parties to terminate all proceedings in respect of the incident. To resile from such an agreement would bring judicial process into disrepute and the subsequent proceedings constituted an abuse of process.
In my view, that decision turns on its peculiar facts especially related to the agreement. Each Justice of Appeal took a slightly different route to reach the same result but each of their decisions was based around the existence and effect of the agreement.
As far as I am aware, this decision is not reported in any authorised report; it constitutes an example of the application of well settled principle to the peculiar facts of that matter.
Prejudice
Mr Algie SC then addressed the question of prejudice. He submitted that the delay in the laying of the further information was extreme and unexplained. In my view, that submission does not stand apart from the other submissions on the question of prejudice.
Delay is an issue that is to be weighed in the balance and I will do so. The question of an explanation is problematic and on one view may not be of much assistance at all. The Court is here dealing with the allegations of sexual impropriety alleged to have been committed by an adult male against an infant female.
Any number of factors and considerations, public and personal, influence such matters. In my view, on balance, there may be some cases where explanation for delay (or the absence of one) may be significant. But that is a question of fact.
In this context, Mr Algie SC also referred to the decision of the High Court in Longman v The Queen.[41] The submission of Mr Algie SC was that the common law position as enunciated in Longman was no longer extant and the protections that may have existed for an accused in cases such as this no longer have application as once may have been the case. It is to be recalled that the decision of the High Court in Longman was published in 1989, one year before the charges on the original information were due to be heard. In the result, on a proper consideration of legislation and authority it is my view that it is not the case that the common law protection for this accused are no longer extant, but they are different for the reasons that I set out below.
[41] (1989) 168 CLR 79 (Longman).
The position in respect of Longman, the provisions of the Evidence Act and the applicable common law principles have now been thoroughly considered in a series of judgments of the South Australian Court of Criminal Appeal and the relevant position may be summarised as set out below.
There is no rule of law or practice requiring a trial Judge to warn a jury that it is unsafe to convict an accused on the uncorroborated evidence of an alleged victim of a sexual offence.[42]
[42] Evidence Act 1929 (SA) s34L(5); B v R [2004] SASC 59 at [26]; R v Corrigan (1998) 74 SASR 454 at 465.
Even though there is no rule of law or practice requiring a Judge to warn that it would be dangerous to convict on the uncorroborated evidence of a complainant, this does not mean that it is never appropriate to give such a direction/warning.
A warning is required whenever is necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case.[43] This is particularly so if there are potential dangers of a jury acting upon evidence without a suitable direction and in circumstances where the jury would not necessarily appreciate those potential dangers.[44]
[43] R v N, RC (2012) 112 SASR 399 at 403-404; Longman; Robinson v The Queen (1999) 197 CLR 162 at [20]; R v Cassebohm (2011) 109 SASR 465 at [17]-[20].
[44] Longman at pages 90-91.
The ultimate question is whether the matters requiring caution are adequately brought to the attention of the jury and whether the overall effect of what the trial Judge says is adequate to avoid a perceptible risk of miscarriage of justice.[45]
[45] R v N, RC at 404 at [20].
The advent of s34CB Evidence Act[46] does not necessarily or at all remove the requirement for what may be commonly understood as a Longman direction which considered a warning where the issue was delay. The factor of delay, as identified in Longman included the loss of those means of testing the complainant’s allegations which would have been open to the accused had there been no delay in the prosecution’s case.[47]
[46] 34CB—Direction relating to delay where defendant forensically disadvantaged
[47] Crampton v The Queen (2000) 206 CLR 161 at [42] but cf JJB v The Queen (2006) 161 A Crim R 187 at [2]-[4].
Following the enactment of s34CB(1) of the Evidence Act, there is no longer a duty to warn a jury of the adverse impact on the defendant’s ability to defend a charge attributable to the passage of time due to any forensic disadvantage suffered by the accused because of the passage of time.
Notwithstanding the enactment of s34CB, in certain circumstances, it will be appropriate for a trial Judge to comment on particular circumstances including delay and, under s34CB(2) of the Evidence Act, a trial Judge is required to give a forensic disadvantage warning in respect of an accused person if the Judge is satisfied that the accused person has suffered a significant forensic disadvantage attributable to the passage of time.[48]
[48] Per Doyle CJ in Cassebohm (2011) 109 SASR 465 at [15]-[16], [24], [28] and [31]; R v N, RC at pages 408, 409, 410.
In R v N, RC[49]at page 410, Gray J held as follows at [42]:-
[49] Supra.
“[42] …I make the following observations:
· A warning that it is unsafe to convict a defendant on the uncorroborated evidence of an alleged victim of a sexual offence is required whenever it is necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case.
· A suitable direction must be given where there are potential dangers in a jury acting upon evidence which may not, without that direction, be appreciated by the jury.
· Whether a direction is called for, and its terms, will always depend on the circumstances of the particular case.
· S34CB(1) does not abolish the duty of a Judge to give a direction warranted by circumstances other than delay.
· S34CB(1) does not abolish the power of a Judge to make a comment about any circumstance, including delay.
· S34CB(1) does abolish the rule of practice identified in Longman – that being a narrow rule referred to by Doyle CJ in Cassebohm, namely a warning based on the forensic disadvantage to an accused person attributable to the passage of time.
· S34CB(2) obliges a Court on forming an opinion that the period of time that has elapsed between the alleged offending and trial has resulted in a significant disadvantage to a defendant, to provide a particular explanation and direction. The precise terms of the explanation and direction are to be found in s34CB(2)(a) and (b), with further qualifications to be found in s34CB(3).
· Once the Court has formed the relevant opinion of significant forensic disadvantage, it must explain the nature of that disadvantage, it must direct the jury to take that disadvantage into account in scrutinising the evidence, but the foregoing explanation and direction is not to take the form of a warning, must be specific to the circumstances of the particular case and must not include the phrase dangerous or unsafe to convict. The further qualification “or similar words or phrases” is added. The reach of this further qualification is unclear and is best discussed in a particular situation rather than on a hypothetical basis.”
In my view, in the context of this aspect of the matter and having regard to these well settled principles, usually, something more than delay is necessary before a Court will intervene. I say “usually” because generally speaking, a Court will not foreclose on any particular matter being relevant to the exercise of a discretion depending upon the circumstances of the case. For those reasons, I am unable to accept Mr Algie’s submission.
The effect of delay on memories
Mr Algie SC submitted that it is a different matter for an accused to test the memory of a 34 year old woman (the age of the complainant presently) rather than the memory of a 10 year old child (the age of the complainant when the matter was first before the Court).
In relation to that submission, the question immediately arises; how is such prejudice, if it exists, to be measured or weighed in the balance?
On both sides, memories change with maturity. That is a burden faced by the complainant but it is also, to a lesser or greater extent, a burden faced by the accused. Depending on the circumstances, it may not be a burden for the accused at all but that is a matter upon which I have no information.[50]
[50] I refer to paragraphs 16 to 21 of this judgment where I comment upon the paucity of some of the accused’s evidence in support of this application.
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.
In that result, I am fortified in my view that the correct approach to the task at hand is as adumbrated in Jacobi that I have already referred to earlier.
A summary of the principles applicable in this case
In light of that discussion, it is necessary to summarise the relevant principles as they have been enunciated by the Courts of Australia concerning when a Court may stay or dismiss a proceeding when it identifies that there has been an abuse of process.[75]
[75] These principle inform the summary of the position as set out in Jacobi referred to above.
Every Court has inherent power to prevent an abuse of its process.[76] Controlling a Court process can be done in a variety of ways depending upon what is necessary, including an adjournment.[77] Other discretionary powers such as the exclusion of evidence may also be appropriate.[78]
[76] Hamilton v Oades (1989) 166 CLR 486 at 502; Jago v The District Court of New South Wales and Ors (1989) 168 CLR 23 (Jago).
[77] Jackson v Sterling Industries Limited (1987) 162 CLR 612 at 639.
[78] Driscall v The Queen (1977) 137 CLR 517 at 541.
To justify a permanent stay, ordinarily there should be a fundamental defect which goes to the root of the trial and cannot be relieved by the trial Judge. The power to grant a stay has a dual purpose; to prevent abuse of process or the prosecution of criminal proceedings in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice.
A fair trial does not necessitate a right to the production of all of the evidence that could have been collected by the police if they conducted a better investigation.[79] The public interest in bringing people charged with crimes to Court is a competing consideration in staying proceedings.[80] A permanent stay should be ordered in extreme cases.[81] The order on the basis of delay alone will be very rare.[82] That said, the main heads of relevant consideration in deciding whether to stay for delay are; the length of the delay, reasons given by the prosecution to explain or justify the delay, the accused’s responsibility for and past attitude to the delay, proven or likely prejudice to the accused.[83] However, it must always be recalled that a fair trial is not the same as a perfect trial.[84]
[79] Jago; Police v Pakrou (2008) 103 SASR 124, R v Williams [2001] 1 Qd R 212.
[80] Ibid.
[81] Ibid.
[82] Re Cooney (1987) 31 A Crim R 256 at 263.
[83] Jago at page 35.
[84] R v Polyukhovich s3782 unreported SASC Cox J 22 December 1992 per Cox J at s3782.
In this case, all of the relevant matters identified above are to be weighed in the balance. That is my task.
In terms of the balance of interests, there is a public interest in ensuring that all members of society are treated fairly and that Courts, as the instruments of society, are not to be used to work injustice and oppression. An accused has an inviolable right to a fair trial and complainants need to know that their complaints have been dealt with in a proper fashion. These concerns must be addressed and balanced.[85]
[85] R v Austin (1995) 84 A Crim R 374 at 384.
A proper consideration must also be given to the criminal onus of proof. That being so, it is not necessary to make a broad examination of the fairness of forensic processes.[86]
[86] Duncan v Cruise (2001) 161 FLR 250; Sedmak v Police [2008] SASC 307.
According to my research, the most recent pronouncement of the superior Court of this State on the issue of delay is the Court of Criminal Appeal’s decision in R v Jacobi.[87] This case concerned an appeal against a ruling of a District Court Judge refusing an application for a permanent stay of the proceedings on the ground that their continuation would constitute an abuse of process. The appellant had been charged with 13 counts of sexual offences against 3 brothers between 1976 and 1989. The appellant was 85 years of age. He required assistance with walking, personal care and transport due to his advanced age and illness.
[87] [2012] SASC 15 (Jacobi).
On the question of the accused’s physical condition, the Court agreed that a permanent stay may be granted in an appropriate case, where it would offend common humanity to require an accused to stand trial.[88] The Court held also that “nevertheless, it will only be in a rare case that an intervening illness or physical or mental condition of the accused will justify this conclusion.”[89] In their joint judgment, Justices Gray and Sulan addressed the question of delay at paragraph [34] et seq. After addressing the particular physical maladies suffered by Mr Jacobi, the Court addressed s34CB of the Evidence Act.[90] Their Honours reiterated the matters that were discussed by Justice Gray in his Honour’s judgment in R v N, RC. Whether a direction is called for concerning any forensic disadvantage suffered by the accused, and the nature of its terms will always depend upon the particular circumstances of the case. Having regard to the extent of the power of a Judge to protect the position of an accused by appropriate directions and moulding processes and directions to the particular factual circumstances of the case, their Honours concluded that the power to order a stay is extraordinary and a determination must be made as to what the interest of justice requires and that is ultimately a balancing exercise for the Court. The issues to be balanced are the question of public interest and the administration of criminal justice, the determination of serious charges and the maintenance of public confidence in the administration of justice.[91]
[88] R v Hakim (1989) 41 A Crim R 372 at 377.
[89] Jacobi at [22]; R v Hakim supra.
[90] At paragraphs [45] et seq.
[91] Jacobi at [54]-[55].
After citing a portion of the judgment of Justice Brennan in Jago[92] concerning the question of fairness, their Honours summarised the position as follows:-
[92] Jago at page 47-49.
“We accept that there has been significant delay. The allegations were first reported to police in February 2010 and the matter listed for a trial to commence in the District Court on 9 July 2012. There has therefore been a delay of just over 36 years between the first alleged offence and this trial date. This delay is not attributable to the defendant. Nevertheless, the offences are serious offences. The matters relied upon by the defendant as indicative of unfairness and oppression are matters which are not uncommon to cases in which an accused faces sexual allegations of this nature said to have occurred some years ago. Parliament, in removing the statutory immunity must have contemplated that historical allegations of this nature would be pursued.”[93]
[93] Jacobi at [57].
Their Honours then accepted the content of the decision of the trial Judge, Judge Soulio in his Honour’s decision[94] concerning the authorities on delay and the appropriateness of when to exercise a discretion to order a permanent stay. Their Honours dismissed the appeal.
[94] R v Jacobi [2012] SADC 92 at 97-99.
In my view on this aspect, his Honour Justice Nicholson has summarised the difficulties which face an accused which are inherent in meeting allegations about events said to have occurred many years ago.[95] I do not need to repeat those matters here and I have briefly addressed them earlier in these reasons.
[95] Jacobi at [104]-[110].
The questions for decision
In the end, the question that I must decide on the aspect of delay is whether the unfairness that will necessarily be inflicted upon an accused because of a trial concerning events that happened many years ago will of itself lead to a decision to grant a stay. In making a decision to grant the stay as requested, I must be satisfied that there is an unacceptable risk to a fair trial because of the delay. In Jacobi, Justice Nicholson summarised the position thus:-
“The question of whether the risk that an accused will not enjoy a fair trial is unacceptable is to be determined within the context of an assessment of the strength or importance of the public interest considerations relevant to the particular proceedings in question. In conducting the balancing exercise, the weight to be accorded to the public interest and the disposition of charges of serious offences, in the conviction of those guilty of crime and in the need to maintain public confidence in the administration of justice[96] will not be constant across all criminal proceedings.”[97]
[96] Walton v Gardiner (1993) 177 CLR 378 at 395-396 per Mason CJ, Deane and Dawson JJ.
[97] Jacobi at [167].
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.
The exercise of discretion
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.[98] Albeit that there is an extensive delay, the question for my consideration is whether any relevant witness are unavailable, whether any evidentiary material has become unavailable or inaccessible and any other relevant matters.[99]
[98] Walton v Gardiner (1993) 177 CLR 378 at 392-393 per Mason CJ, Dean and Dawson JJ.
[99] R v Littler (2001) 120 A Crim R 512.
Dealing with those matters first, it is clear from the affidavit material filed in support of the application, that the accused no longer has access to the witness proofs that he prepared in 1988, any documentary records that he might have used in 1988 to assist him in preparing his witness proof and any other independent records which he may have subpoenaed to assist him to defend the action, (and I think all of this may be assumed for the purposes of discussion). That said, in my opinion, the accused has not established to my satisfaction by any means that the absence of that evidentiary material means that the Court does not have the capacity to provide the accused with a fair trial.
There is no affidavit evidence indicating that other witnesses have become unavailable and I will leave that matter to one side.
In relation to the documentary evidence, there is no suggestion within the affidavit material that, with sufficient time, the accused would be unable to substantially recreate his proof of evidence to address the charges on the information. Count one of the information relates to a period between the 1st day of February 1986 and the 25th day of March 1988. It alleges the commission of more than one act of sexual exploitation of the complainant. The second count relates to an event that occurred on the 24th day of March 1988; it appears that the accused was put out of the home in Ethelton in which the accused cohabited with the complainant’s mother and at which the complainant lived on the 25th day of March 1988.
Albeit that the accused alleges that at a particular time in the period when these offences were allegedly occurring, he was working at a particular place at Port Adelaide and on a particular ship, he does not say (because he could not reasonably say) that, for example, in relation to the first count, he would have been working there for the whole period. No doubt the accused may have done work associated with that ship at a particular time. However, in my view, that does not address the essential aspect of the matter namely the allegations of persistent sexual exploitation of a child over a period of 25 months.
The other relevant date of events alleged to have occurred (count 2) is the evening before the accused was put out of the home at Ethelton.
No threat to a fair trial for the accused
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.
The process of balancing interests
Moving to the second step of the matters for consideration namely the balancing process, no submission has been made to me which criticises the strength of the evidence to be called as part of the prosecution case. No submission has been made that there is some feature of the evidence that “creates a difficulty in properly weighing its probative value…”[100] Similarly, no submission has been put to me on the degree of risk that a conviction based upon the evidence to be adduced would be attended by a miscarriage of justice based upon the evidentiary material lost, destroyed or no longer available.[101]
[100] Police v Pakrou (2008) 103 SASR 124 at [71]-[74].
[101] Ibid.
Mr Algie SC then put a submission that the outcome of this litigation, if the accused was found guilty, and convicted of the crimes alleged against him would be unfair, prejudicial, oppressive or unjust.[102]
[102] Cf Jago at page 33 per Mason CJ and at page 72 per Toohey J: see also R v Davis (1995) 81 A Crim R 156 at 165.
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.
To the contrary. The accused says that he had these materials available to him and that he had some positive feedback from his solicitors and counsel. Though trite, this Court will place no weight upon positive feedback from solicitors and counsel but upon some evidence of unfairness, prejudice, oppression or injustice. In my view, insufficient evidence has been brought by the accused to make out such a case.
As matters stand, there is no suggestion that the accused would not be able to proceed to trial based upon his memory of events as they occurred at the relevant time. All that is said is that he does not have available to him the materials that he might have had available to him in 1988-1990. However, there is no nexus or link drawn between the assertion of the materials available in 1988-1990 and the content and quality of the recollections that the accused had at the time, the comparative particularity of the information he was able to provide to his solicitors and counsel and the effect of those matters upon his prospects of successfully defending the matter. The Court is left largely in a position of speculation.
In my view, it is and will always be the case that trials concerning alleged sexual offences which are alleged to have occurred many decades ago will be imperfect. That is self evident and perhaps does need not to be stated. That is a matter that Parliament presumably had in mind when enacting legislation that had retrospective operation. Inferentially at least, Parliament will also have been aware of the jurisdiction of Courts to stay proceedings on grounds including abuse of process.
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.
In my view, a trial Judge has mechanisms available to redress the complaints identified by the accused and is in a position to consider whether appropriate directions are required to be made in relation to evidence, matters of procedure or any other matters necessary to deal with any complaint made by the accused in relation to unfairness of the trial.
No stay of the proceedings
In those circumstances, I am of the view that there is no warrant to grant a stay because of the delay that has occurred between 1990 and today, or because of the loss of potential evidence or any other matter upon which submissions have been made.
I refuse the application.
[9] There was no evidence one way or the other on this point. I refer to the decision of the Court of Appeal of the Supreme Court of Queensland in Nathan Todd Cooney (1987) 31 A Crim R 256. The case concerned a situation where the prosecution entered a nolle prosequi and later presented an indictment containing the same counts. The accused argued that there had been an abuse of process of the Court because an application for an adjournment of the matter had been refused by the Courts. In those circumstances, a stay of proceeding was granted by the Court. There was then an application for an order in the nature of mandamus requiring a trial Judge to hear the case. The Court of Appeal held that the case in which a stay of proceedings will be granted on the ground of abuse of process will be rare and to be sufficient, some conduct on the part of the prosecuting authority must be shown to result in prejudice to the accused obtaining a fair trial. Conduct which merely frustrates the method of listing cases does not amount to an abuse of process of the Court. However in considering the matter, the Court held as follows at page 264: “… the authority established that the principal concerned is that there be a fair trial and whether in the circumstances an accused person has been prejudiced by reason of events flowing from the actions of the prosecuting authorities. It is clear enough that if there has been unconscionable delay caused either deliberately or inadvertently the result of which is to prejudice an accused person in the manner of his having a fair trial, then the Court before whom the proceedings are brought has a constitutional jurisdiction to order a stay of further proceedings notwithstanding that the power of the Crown or the prosecuting authority is not subject to examination.”
(1) A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
(2) If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a) explain to the jury the nature of the forensic disadvantage; and
(b) direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3) An explanation or direction under subsection (2) may not take the form of a warning and—
(a) must be specific to the circumstances of the particular case; and
(b) must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
(1) An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2) For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
(3)If—
(a) at any time when an act of sexual exploitation of a child was allegedly committed the child was at least 16 years of age; and
(b) the defendant proves that he or she believed on reasonable grounds that the child was of or over the prescribed age at that time, the act of sexual exploitation is not to be regarded for the purposes of an offence against this section.
(4) Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a)subject to this subsection, the information must allege with sufficient particularity—
(i)the period during which the acts of sexual exploitation allegedly occurred; and
(ii)the alleged conduct comprising the acts of sexual exploitation;
(b)the information must allege a course of conduct consisting of acts of sexual exploitation but need not—
(i) allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or
(ii) identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;
(c) the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—
(i)in relation to the child who is allegedly the subject of the offence against this section; and
(ii) during the period during which the person is alleged to have committed the offence against this section, must be charged in the alternative.
(5) A person who has been tried and convicted or acquitted on a charge of persistent sexual exploitation of a child may not be convicted of a sexual offence against the same child alleged to have been committed during the period during which the person was alleged to have committed the offence of persistent sexual exploitation of the child.
(6) This section applies in relation to acts of sexual exploitation of a child whether they were committed before or after the commencement of this section.
(7)In this section—
prescribed age, in relation to a child, means—
(a)in the case of a person who is in a position of authority in relation to the child—18 years;
(b)in any other case—17 years;
sexual offence means—
(a)an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b)an attempt to commit, or assault with intent to commit, any of those offences; or
(c)a substantially similar offence against a previous enactment.
(8)For the purposes of this section, a person is in a position of authority in relation to a child if the person is—
(a) a teacher (within the meaning of the Education and Early Childhood Services (Registration and Standards) Act 2011) engaged in the education of the child; or
(b)a foster parent, step‑parent or guardian of the child; or
(c) a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) providing pastoral care or religious instruction to the child; or
(d)a medical practitioner, psychologist or social worker providing professional services to the child; or
(e) a person employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or any other person engaged in the administration of those Acts, acting in the course of his or her duties in relation to the child; or
(f) an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).
(1)This section abolishes the common law relating to recent complaint in sexual cases.
(2) In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3) Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a)it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the consistency of conduct of the alleged victim; and
(b)it is not admitted as evidence of the truth of what was alleged; and
(c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6)In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
(1)In proceedings in which a person is charged with a sexual offence, no question may be asked or evidence admitted—
(a)as to the sexual reputation of the alleged victim of the offence; or
(b) except with the permission of the judge—as to the alleged victim's sexual activities before or after the events of and surrounding the alleged offence (other than recent sexual activities with the accused).
(2) In deciding whether permission should be granted under subsection (1)(b), the judge must give effect to the principle that alleged victims of sexual offences should not be subjected to unnecessary distress, humiliation or embarrassment through the asking of questions or admission of evidence of the kind referred to in that subsection, and must not grant permission unless satisfied that the evidence in respect of which permission is sought—
(a)is of substantial probative value; or
(b) would, in the circumstances, be likely materially to impair confidence in the reliability of the evidence of the alleged victim,
and that its admission is required in the interests of justice.
(3) Permission must not be granted under subsection (1)(b) authorising the asking of questions or the admission of evidence the purpose of which is only to raise inferences from some general disposition of the alleged victim.
(4)An application for permission under subsection (1)(b) must be heard and determined in the absence of the jury (if any).
(5) In a trial of a charge of a sexual offence, the judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim of the offence.
(6) Subsection (5) does not affect the operation of any provision of this or any other Act requiring that the evidence of a witness be corroborated.
(7)In this section—
evidence includes an allegation or statement made by way of an unsworn statement;
sexual activities includes sexual experience or lack of sexual experience.
[62] R v Corkin (1989) 50 SASR 580 at 581.
(1)This section abolishes the common law relating to recent complaint in sexual cases.
(2) In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3) Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a)it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the consistency of conduct of the alleged victim; and
(b)it is not admitted as evidence of the truth of what was alleged; and
(c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6)In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
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