R v Barber No. DCCRM-96-1173 Judgment No. D3642

[1997] SADC 3642

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Ruling of His Honour Judge Kitchen

Hearing

19/06/97.

Catchwords

Abuse of process - on first day of trial production by prosecution of note written by principal Crown witness in sexual case - mistrial - note handed to police officer when the witness attended to sign her deposition - note assented complaint of sexual offence `lies' - deposition signed by witness - on presentment for retrail application by accused for order permanently staying proceedings on grounds note deliberately witheld by investigating police officers - application refused.

Materials Considered

• H (1995) 83 A Crim R 403;
• R v K (1991) 161 LSJS 135, referred to.

Representation

Director Of Public Prosecutions R:
Counsel: MR D SMITH - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS (SA)

Accused DAVID WILLIAM BARBER:
Counsel: MR W BOUCAUT - Solicitors: S ANDREW

DCCRM-96-1173

Judgment No. D3642

3 July 1997

(Criminal)

R v BARBER

Criminal

Judge Kitchen

The accused is charged in the same Information with threatening life, indecent assault and common assault all allegedly committed on 16th August 1996 at Barmera in relation to Kelly Ann Millikan and with one count of damaging property on the same date, also at Barmera, the alleged victim in that count being Mandy Lorraine Millikan (Ms Millikan). Ms Millikan is Kelly's mother.

The accused applies for an order "that the trial of the matter be stayed permanently".The application arises in this way.

The trial of the accused on the Information began on 6th May 1997.During the course of that day the Crown produced to the defence for the first time a copy of a letter written by Kelly in which she asserted that the allegations she had made against the accused were "lies".The letter had been handed to Constable Margaret Acton on 20th August 1996 four days after she had taken a statement from Kelly over the telephone.The allegations in the statement led to the accused being charged with the offences in relation to Kelly and arrested on 16 August, 1996.Constable Acton expanded the statement she had taken from Kelly into a declaration to be signed by her and it was on the occasion Constable Acton met Kelly on 20th August 1996 for the purpose of Kelly signing the declaration that the letter was handed to Constable Acton.

On the application of counsel for the accused on 7th May 1996 the learned Judge who presided at the trial discharged the jury from bringing in a verdict and remanded the accused for trial.The learned Trial Judge gave reasons for his decision to discharge the jury.

Mr Smith who appeared for the DPP on the hearing of the application before me and Mr Boucaut who appeared for the accused, were also counsel in the aborted trial.

The grounds relied on by the accused in his application are:

"2. PARTICULARS OF GROUNDS RELIED UPON

(a) The continuation of the trial of the applicant would amount to an abuse of the process of the Court.

Particulars

1. On 6th May, 1997 the DPP presented the applicant for trial on information dated 4th November, 1996 before His Honour Judge David and a jury.

2. On 7th June, 1997 His Honour granted a mistrial on the basis of a failure to disclose to the applicant important evidence material to the defence of the applicant (see transcript p79 and subsequent ruling delivered at p92).

3. The document referred to above was deliberately held from defence by investigating Police Officers.

4. The withholding of the said document has caused embarrassment and prejudice to the applicant in that he has been required to face a second trial.

3. NATURE OF QUESTION OF LAW TO BE RAISED

(a) Abuse of process."

The Crown supplied to the accused two declarations of Constable Acton dated 22nd May 1997 and 6th June 1997, thedeclaration of Detective Geoffrey Robert Carson dated 6th June 1996 (all Exhibit P1), the declaration of Kelly Millikan dated 16th May 1997 (Exhibit P3) and the declaration of Ms Millikan dated 20th May 1997 (Exhibit P4).The Crown called Constable Acton and Detective Carson to give evidence.

Constable Acton has been a police officer for some 17 years all spent on uniformed patrols.She said that on "hundreds" of occasions she has dealt with adult and child victims of alleged sexual offences.

On 16th May 1996 Constable Acton spoke to Kelly over the telephone and recorded in long hand allegations she made concerning the accused which Constable Acton subsequently typed in the form of a declaration and then on 20th May 1996 she met Kelly and her mother at the Barmera police station so that Kelly might sign the declaration.

Constable Acton stated that at the meeting on 20th May she outlined to Kelly what she (Constable Acton) knew of the matter and told her of "the normal requirements in regard to court appearances and proceedings which occur once charges are laid against a person".Ms Millikan informed Constable Acton that she had "dropped the charges" against the accused, charges which Constable Acton said she knew nothing about.During these conversations, Constable Acton said, Kelly spoke only if she was spoken to, but then Ms Millikan told Constable Acton that Kelly had something for Constable Acton "and a note was handed to me which was written on a small, lined piece of paper".That note is Exhibit P2.It reads:

"I Want the charges dropped because I was lying to pretect (sic) my Mum from any more hiting (sic) and abeuse (sic) and to stop him from being horibal (sic) to me and my brothers so I made this story upa friend told me sume (sic) things to say and I have herd (sic) Dave talking about other people what they have don (sic) to there (sic) children thats where I got the Ideas from

from

Kelly Millikan

Kelly Millikan"

Constable Acton related that she spoke with Kelly about the note in the presence of Ms Millikan "to ascertain why she had made a false report" explaining "the normal procedures that occur as a result of a false report to police" but she found Kelly reticent to speak and what she did say Constable Acton described as being "short and given in an unsure, frightened manner".

Constable Acton stated that in a conversation in the absence of Kelly, Ms Millikan asserted that there were problems with Kelly lying all the time, and Constable Acton gained the impression that Ms Millikan did not believe the allegations made by Kelly against the accused.Constable Acton judged that she needed to speak to Kelly alone to which Ms Millikan agreed.Ms Millikan in her statement said she left Kelly alone with Constable Acton for 20 to 30 minutes.

Constable Acton stated that she reiterated to Kelly "the need to sign the statement she made to me on the telephone a few nights before, if it was the truth" whereupon Kelly "told me it was the truth and began to get upset and cry".Constable Acton said she "established" from Kelly that she was concerned about her mother and did not want the accused to go to gaol.Kelly signed her statement when Ms Millikan came back into the room where Constable Acton and Kelly were.

In her second declaration (dated 6th June 1997) Constable Acton related that before she spoke to Kelly alone, she had tried unsuccessfully to contact Detective Carson "due to a need to make further investigations into the matter of the false report" and after Kelly signed the statement Constable Acton put the note into her folder where it remained until she gave it to Detective Carson on 22nd May 1997.

Constable Acton stated that some days after Kelly signed her statement, Constable Acton spoke with Detective Carson and explained "the difficulties that I had had in the process of the signing of the declaration by Kelly Millikan...I stated to (Detective Carson) that (Kelly) had first of all said that she had been telling lies in the statement.I mentioned that she had given me a note with this on it but we had no further conversation in regard to the note...I did not consider the note to be evidence, and treated in (sic) no differently than if any complainant had reported a matter and expressed opposing requests at varying times in regard to proceeding with a matter... At the time of receiving the note I felt Kelly had only written it to support her mother and that it was not really true...Due to this the note handed to me was not discussed again".

In cross-examination Constable Acton agreed that it was important that a complainant be consistent in her account of an alleged offence and that an inconsistency in the version of the alleged events was also important.It was put to her whether she would see a retraction of a previously stated version of events as being inconsistent.She replied:

"A.No, no.I would say it needs to be looked at, as to why it may have occurred, and that is because a sexual assault often involves a lot of other surrounding matters of pressure, and that can come about, and you need to establish that first, before actually assessing why someone who has made a statement originally is not having other considerations.

Q. So that if you were to get a handwritten letter, such as has been produced here, you would say that that is unimportant.Is that what you are telling us.

A. No.I didn't say it was unimportant.

Q. How do you rate the importance of that handwritten note that you received from Kelly Millikan.

A. When I originally discussed this with her I found in my mind it became very important, because I could see she seemed to be under a lot of pressure, stress, because she was very reticent to talk about it.My first thoughts were there's a lot more things happening in this house than just this.And yes, it is important.

Q. Important for whom.

A. Kelly.

Q. Did you think that it was an important piece of material for the purposes of the case against Mr Barber.

A.That all goes together, I guess.My main part of the investigation is dealing with the victim."(pp 15-16)

Constable Acton expanded on what she said she told Kelly concerning the "normal procedures" where there is a false report to police.

"A. I went through what would normally happen with a false report, that if it is revealed that we have a false report then we cannot just sign it off as if you wanted to drop the charges, we have to investigate the matter more as to why the false report was made.

......

"Q. That is all you said.

A. I went on to say to her that it was more than just signing something, or handing something here like this now, the letter that she gave me, we have to look into it more.I would have to contact the CIB and discuss the matter with them.I made no notes of the conversation.I was trying to recall.

Q. Do you speak of the normal procedures.

A. Yes, the CIB, I would have to contact them.

XXN

Q. And tell them that a false report had been made.

A. That, if that was the case, yes." (pp 17-18)

......

"Q. And you say that you continued to be unable to get satisfactory responses from Kelly Millikan when asked questions in regard to reasons for making the false report.

A. Yes.

Q. What was said to enable you to write that in your statement.

A. I simply asked her.I stressed to her that she needed to tell me the reasons for writing the letter or giving me the note, saying I just couldn't accept a note like that.It had quite some implications, some implications that needed to be discussed.She had to tell me why.I needed to know why she had written it.

Q. Did not the letter itself offer her purported reasons as to why.

A. Well it does say some things in there but I still I needed to hear that, I needed to hear that from Kelly." (p 20)

.......

"Q. Did you say what 'sorting it out' involved.

A. Yes, that we would have to speak to the CIBand the CIB may want to talk to her about it.

Q. The CIB may want to talk to her, what, about making the false report.

A. Yes.

Q. How many times was that said.

A. Twice, almost I would say in the original time, I may have mentioned it again, I can't be sure on that.

Q. When you say, I am just not clear on your answer there, twice in the mother's presence or -

A. Yes.

Q. And you may have mentioned it again to Kelly when you had her on her own.

A. Yes, I can't be sure of that.I know I am quite sure of the fact of my major thing on her own was to stress to her that we needed to find out the truth."

(pp22-23)

She was asked by the Court:

"HIS HONOUR

Q. Had your view throughout, from the time of the note being produced, been that it was not a false report.

A. Yes, my views were.

XXN

Q. What, you didn't have any doubt about it when she handed you that note, that is what you are saying.

A. My view was that there was more to it than the note.The way that she had given the statement over the phone.The original statements given, and at that time I had beenthrough the statement with her twice.

Q. Twice.

A. As in regard, going through the original which I had taken rough notes, as I went through before, and I felt at that time I was, from what I could, just then, that I was happy with taking the statement.If I had any reservations at that time I would have made it clear that I had reservations right from the beginning about the matter." (pp20-21)

Constable Acton was taxed on the topic of whether or not she mentioned to Detective Carson that she had been given the note.That exchange appears at pages 25-28.I found her evidence confusing and somewhat inconsistent.It ranged from saying she told Detective Carson that Kelly had said she had been lying, "that she had written a note or such about the statement that wasn't true" - to mentioning the note "very briefly"; to telling Detective Carson that Kelly "had mentioned she was lying, she had written down things - I don't know if I mentioned the word "note" even.That she had written down that she had been lying and after discussions with her, or after discussions with her, that she would go ahead and sign it, told me the statement was the truth"; to "I believe, yes, I did say she had written a note.I mentioned it to him"; to endeavouring to give Detective Carson the understanding that Kelly had written a note about the lies.

In his declaration Detective Carson stated that some time after 20th August 1996 he had a lengthy conversation with Constable Acton about this matter during which he said he was told Constable Acton had difficulties getting Kelly to sign her declaration in the context of Kelly being "concerned about the effect of proceeding with the charges on her mother and their relationship" but Constable Acton did not tell him of a letter, the existence of which he first became aware of from Mr Smith on 6th May 1997 and discovered it to be in Constable Acton's possession on that date.He stated that if he had been aware of the letter he would have personally spoken with Kelly and anyone else possibly involved in its "compilation" to identify whether charges should be laid.

I interpolate here that Kelly, in her declaration dated 16th May 1997, states that the letter was written by her at her mother's dictation.MsMillikan states she found the letter in Kelly's bedroom when she was tidying the room "a couple of days" after the accused was arrested, that she read the "first couple of lines" not the whole of the letter, put it in her bag, did not speak to Kelly about it and gave it to Constable Acton on 20th August 1996.She stated she did not dictate the contents of the letter to Kelly and was not present when it was written.

Detective Carson has been a police officer for 20 years for 11 of which he has been a member of the CIB.In cross-examination he denied he was told by Constable Acton that Kelly had said her statement was "lies" or that there was a note to that effect.He said that if he had been aware of a note written by Kelly he would have withheld sending Kelly's declaration to the DPP "to make an investigation as to who wastelling the truth", agreeing that the note was very important from the perspective of the police and the defence.

I prefer and accept the evidence of Detective Carson to that of Constable Acton upon the matters on which their evidence is in conflict, particularly on the issue of his knowledge of the note.As I have already said I found Constable Acton's evidence as to precisely what she remembered telling Detective Carson to be confusing and too uncertain to be accepted in face of Detective Carson's adamant rejection of it.

However, I do not believe that Constable Acton was knowingly untruthful in her evidence.In my view she made a very early judgment about the reliability or worth of what the note contained, and, that conclusion being confirmed by her conversation with Kelly alone, she honestly, but wholly incorrectly as I trust she now sees, failed to make the note available forthwith to Detective Carson, the Detective in charge of the case.That failure was reprehensible but I am satisfied it was not done with an intention of suppressing the note from disclosure or depriving the court or anyone else of a knowledge of its existence or its contents.

I accept that neither the DPP nor any police officer, other than Constable Acton, knew of the existence of the note until 6th May 1997 and then only on investigation at the behest of Mr Smith at the request of Mr Boucaut who either from the accused or his instructing solicitor had been alerted to there being a note to the effect, in some words, that Kelly did not wish to pursue her complaint.On the evidence I have heard the note remained undiscovered until 6th May 1997 through no fault of the Crown, the police (other than Constable Acton) or the accused.

In the case of H (1995) 83 A Crim R 403, Mullighan J who wrote the principal judgment (and with whom Perry and Debelle JJ agreed upon the relevant principles) said at page 410:

"The inherent power of the court permanently to stay criminal proceedings which are an abuse of the process of the court cannot be doubted.However, it is a power which is to be exercised only in rare and exceptional circumstances. Ordinarily the Crown is entitled to have an accused person tried on any Information filed by the Director of Public Prosecutions.It is in the community interest that those charged with crime should be brought to trial so that if found guilty, they may be adequately punished.Nevertheless, the court is obliged to protect the integrity of its process and may permanently stay criminal proceedings which, if allowed to continue, would give rise to unfairness to an accused personor to oppression or injustice:Jago v District Court (NSW) (1989) 168 CLR 23; 41 A Crim R307 and Walton v Gardiner
(1993) 177 CLR 378.If the court discerns that there are grounds which may justify a stay of criminal proceedings, there is a balancing exercise.In Walton v Gardiner, Mason CJ, Deane and Dawson JJ explained that exercise as follows (at 395-396):

"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 consider- ations 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.""

In Queen v K. (1991) 161 LSJS 135 King CJ wrote at page 140:

"There is clear authority for the proposition that the prosecution must disclose to the defence any convictions of prosecution witnesses of which the prosecution is aware.R. v. Paraskava (1983) Volume 76 Criminal Appeal Reports 162.This obligation must, in principle, extend, in my opinion, also to any information in the possession of the prosecution which reflects materially upon the credibility of prosecution witnesses."

In that case some information in the possession of investigating officers implicated a principal Crown witness in the production of a cannabis crop many years earlier.The information did not come into the possession of the law officers prosecuting the case against K.King CJ doubted whether the information, which he described as vague and tenuous, would have given rise to the obligation to disclose it even if it had been communicated to the law officers.He went on (at pages 140-141):

"The fact is, moreover, that the information was not in the possession of the law officers conducting the prosecution.In many cases that would not be an answer.The prosecuting law officers might be expected to makereasonable enquiry of those instructing them as to matters potentially affecting the credibility of witnesses for the prosecution.There are limits, however, to the enquiries which prosecuting officers can be expected to make.R. v. Collister and Warhurst (1955) Volume 39 Criminal Appeal Reports 100.There seems to be nothing in the present case which ought to have alerted prosecuting officers to the need to make enquiries which would have elicited this information.It is regrettable that the investigating officers did not communicate the information to those conducting the prosecution but it was so vague and tenuous that their omission to do so is understandable.I do not think that the Crown Law officers are to be criticised, in the circumstances of this case, for failure to make the sort of enquiries which would have elicited the information."

The contents of the note written by Kelly are not vague or tenuous, but in my opinion as I have said, the law officers conducting the prosecution cannot be criticised although Constable Acton can be.

Mr Boucaut submitted that it does not matter whether Constable Acton deliberately or merely negligently failed to disclose the existence of the note - what is important he urged is the prejudice to the accused which Mr Boucaut identified to be:

ù a second trial on a different footing from the first aborted trial by reason of the discovery of the note and that Kelly will now know the importance of the note

ù that appreciating the importance of the note Kelly's resolve in cross-examination is likely to have been "hardened up" in circumstances where that may not have occurred if the note had been available before the first trial;an element of surprise which may have gone to the credibility of Kelly has been lost

ù loss of an opportunity to elect for trial by Judge alone

In general terms Mr Boucaut put his submission on two bases;that the accused cannot now have a fair trial but if that is not accepted then the failure to disclose the note makes this case one of those rare and exceptional cases where a permanent stay should be granted.

Mr Boucaut did not urge that there was any mala fides on the part of Constable Acton.If I may say so, on the evidence, that was a very proper attitude for him to take.

Mr Smith submitted that the only possible head of prejudice identified by the accused is that concerned with what Mr Boucaut had called a hardening up of Kelly's resolve arising out of the investigations by the police once the existence of the note was disclosed to Detective Carson.As to that Mr Smith argued the investigation would have occurred before the first trial were the note to have been produced and with the same likely consequence identified by Mr Boucaut, namely a hardening of Kelly's resolve. In my opinion that is correct.

In my opinion this is not a case where the conduct of Constable Acton has been so outrageous and inimical to public confidence in the administration of justice, in which expression I include the actions of those whose responsibility it is to investigate alleged crime, that a stay should be granted.The issue is whether balancing the requirements of fairness to the accused with other factors including the public interest in the prosecution and punishment of those found guilty of crime, the continuation of proceedings against the accused would be oppressive or unjust.

In my view that the accused has lost the right to make an informed decision whether or not to elect for trial by Judge alone cannot be seen to be unfair to him in the sense that he cannot have a fair trial.Trial by Judge alone or by Judge and jury accords an accused a fair trial.In any event, but without in any way purporting to prejudge the matter, it may be that the accused could show there are special reasons to justify a dispensing order pursuant to Rule 16 of the Jury's Rules.

It is true that the accused has incurred the cost of the aborted trial and a second trial means that he must again experience the anxiety of an impending trial through no fault of his own;but equally that is not a consequence of any fault on the part of the DPP, his officers or his counsel.

Weighing the various factors, both those adverted to by counsel and those arising in the matter as a whole, in my opinion the accused's application must be refused.