R v Clowes

[2024] QDC 40

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Clowes [2024] QDC 40

PARTIES:

ANTHONY JOHN CLOWES

(applicant)

v

THE KING

(respondent)

FILENO:

1782/23

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVEREDON:

5 April 2024

DELIVEREDAT:

Brisbane

HEARINGDATE:

23 February 2024

JUDGE:

McGinness DCJ

ORDERS:

1.  Application dismissed

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – STAY OF INDICTMENT –

where historical sexual offence alleged – where defendant seeks permanent stay of indictment – where records of mediation not available – whether defendant materially prejudiced – whether direction to jury sufficient to cure unfairness

LEGISLATION:

Criminal Code Act 1899, s 590AA

Evidence Act 1977, s 132BA

CASES:

Dupas v The Queen (2010) 241 CLR 237

GLJ v Roman Catholic Church Lismore (2023) 97 ALJR 857

Jago v District Court (NSW) (1989) 168 CLR 23

R v Ansell; Bradbury [2022] QDC 148

R v DCL [2018] QDCPR 11

R v Dodds & H ex parte Attorney General [1996] QCA 402

R v Edwards (2009) 83 ALJR 717

R v Juides (unreported, 25 May 2022, Supreme Court of Qld)

R v KM [2016] QDCPR 8

Robinson v R [1999] HCA 42

Walton v Gardiner (1993) 177 CLR 378

COUNSEL:

S Holt K.C. for the applicant/defendant S McFarland for the respondent/Crown

SOLICITORS:

Gilshenan & Luton Legal Practice for the applicant/defendant

Office of the Director of Public Prosecutions for the respondent/Crown

Application

1. The defendant is charged on an indictment before the District Court at Brisbane with a single count of rape against the complainant relating to an incident on 9 December 1999.

2. The defendant applies pursuant to s 590AA Criminal Code Act 1899 (Qld) for the permanent stay of the indictment. The defendant submits that any trial of the defendant would be unfair because of the loss of evidence relating to a mediation said to have taken place between the complainant and the defendant. The prosecution opposes the application.

Complainant’s evidence

1. The defendant and complainant were police officers working from the Gladstone Criminal Investigation Branch at the time of the alleged offending.

2. On 9 December 1999, both attended a work Christmas party with colleagues. At about 4am, the complainant drove the defendant and a colleague Mr Stokes back to her house. It was arranged prior to the evening that they would stay the night because they would be drinking, and the complainant lived close to the venue. The defendant and Stokes were to sleep in the loungeroom. The complainant fell asleep in her bedroom fully clothed.

1. Sometime later the complainant woke to the defendant pressed up against her back with his hand across her chest and his penis penetrating her vagina. The complainant swore, jumped out of bed, and ran to the bathroom.

2. The following morning the complainant drove the defendant and Stokes to work. The complainant wished to get away from Gladstone, so she told her Officer in Charge, DS Rohweder (now Chief Superintendent) she had to do a ‘gun run’ to Brisbane. When she arrived in Brisbane, she told her friend Officer Saunders that she had been sexually assaulted. The complainant also attended Brisbane Police Headquarters where she spoke to police officers. In their presence she phoned Chief Superintendent Rohweder. According to the complainant, she told him the defendant had raped her. The complainant chose not to make a criminal complaint because she thought it would ruin her career.

3. The complainant made a complaint of rape to Police on 26 August 2021.

Preliminary complaint

1. The complainant made numerous complaints to family and friends over the 20 years following the alleged offence. According to her statement and the preliminary complaint witnesses, her complaints can be summarised as follows:

   Cheryl Saunders: The complainant states she told Ms Saunders on 10 December 1999 the defendant sexually assaulted her. The complainant states she disclosed most of the details to Ms Saunders, however “for some reason I downplayed how far Tony went.” Ms Saunders states the complainant told her she had been sound asleep and woke up to [the defendant] “trying to have sex with me.”

   Chief Superintendent Rohweder: The complainant says she told Chief Superintendent Rohweder on 10 December 1999 the defendant raped her. Chief Superintendent Rohweder states in his police statement the complainant told him the defendant sexually assaulted her. In contemporaneous notes he took of the conversation, the complainant alleged sexual harassment.

   The complainant’s father James Devine: The complainant cannot recall what she told her father. Mr Devine recalled the complainant told him about an incident in

Gladstone. From what she told him, he assumed she had been groped or assaulted by the male colleague.

The complainant’s brother Christopher Devine: The complainant cannot recall what she told her brother. Mr Devine recalls the complainant telling him in 2000 that she had woken to the male police officer sexually assaulting her.

Madonna Hickey: Madonna Hickey stated the complainant told her, Cheryl Saunders, and Kirsty Spencer-Jackson in early 2000 that she had been sexually assaulted by a police officer in Gladstone. She went to bed and was woken by “Clowes” spooning her and trying to have sex with her.

Sharon Kelso: The complainant told Sharon Kelso in January 2000 she had been raped, it was not a violent act and, “I had played it down a lot.” The complainant said she didn’t want to make a criminal complaint.

The complainant states she also told Michelle Bunton, Mark Ellis, Neil Southern, Nicole Drew, Monique Fitzgerald, and Tim Everett.

Leanda Norman: Leanda Norman was the complainant’s housemate in Gladstone. She recalls the complainant telling her in the days after the incident she had been “assaulted (I do remember those words)”, by [the defendant]. On 28 August 2021, the complainant told her the defendant had raped her. This was the first time the complainant used the word ‘rape’ to her.

James Stokes: James Stokes states the complainant told him in the weeks following the incident words to the effect “Tony assaulted me in my house after the event.”

Monique Fitzgerald: Monique Fitzgerald states in 2006 the complainant told her about an incident one night in Gladstone when a male colleague had sexually assaulted her. The complainant gave no further detail. In 2021, prior to making her complaint, the complainant first referred to the incident as rape.

Nicole Drew: Nicole Drew states the complainant told her shortly after she moved to Brisbane from Gladstone that a colleague had raped her.

Kirsty Spencer-Jackson: In early 2000, the complainant told her in the presence of Sharon Kelso and Madonna Hickey, that she woke to a colleague in her bed having sex with her from behind.

Deanne Harland: In approximately 2002, the complainant told her she had been sexually assaulted by a male colleague from Gladstone. She had been woken to a male person sexually assaulting her. The complainant clarified with her that she had been raped.

Tim Everett: In January 2000, the complainant told him she had been sexually assaulted by the defendant. She told him that she awoke suddenly and from the light in the hallway she could see the defendant “poised with an erect penis in hand pressing his penis to her now bare and exposed vagina.”

Neil Southern: In approximately late 2000, the complainant told him about an unwanted indecent sexual incident in Gladstone. The incident involved the male colleague ending up on top of her.

Michelle Bunton: In 2017, the complainant told her she left the police force because she had been raped. She woke to a colleague penetrating her.

Stephen Tilley: In approximately 2008, leading up to their wedding, the complainant told him she woke up and a male officer was on top of her and that he raped her.

Lost records of Disclosures to Police in Brisbane in December 1999 and of Mediation

1. There is no available evidence or documentary records of what the complainant disclosed to police at Brisbane Police Headquarters on 10 December 1999, or in the following weeks.

2. There is no evidence or records of what the complainant disclosed during a mediation process in the presence of the defendant.

3. The complainant was cross-examined at committal proceedings on 28 August 2023. She could not recall the names of police officers she spoke to on 10 December 1999, or what department they were from. She believed there were four officers, and one of them was present when she spoke to Chief Superintendent Rohweder by telephone.

This was the last time she recalled speaking to police in 1999, apart from the Human Resource Department to organize a transfer to Brisbane. The complainant maintained she had no recollection of any disciplinary proceedings against the defendant. She did not recall attending a mediation meeting between her and the defendant in the presence of police conciliators. She said, “Probably why I don’t recall because I would have blocked that out, being with, - in that room.”¹

1. Chief Superintendent Rohweder confirmed under cross-examination at the committal proceedings the complainant phoned him in the presence of police officers on 10 December 1999. He made notes in his police diary soon after the conversation to the effect the complainant used the term “sexual harassment” during the call as opposed to a more serious allegation. Chief Superintendent Rohweder was cross-examined about whether the complainant ever alleged a criminal offence. He testified that she did not. He said that “rape or something of that kind… was never mentioned”. Chief Superintendent Rohweder also said he had searched for but failed to locate records of any email correspondence between him and EEO staff at Brisbane Police Headquarters in relation to the matter, although he accepted there would have been emails. Chief Superintendent Rohweder could not recall a mediation taking place.

2. After exhaustive enquiries by the prosecution and defence no records have been located of email communications, disclosures by the complainant to police on 10 October 1999, other police records of the incident, or records of the mediation that took place, including what was discussed by the complainant and the defendant during the mediation.

3. Other evidence suggests a mediation did occur. This includes:

·The complainant told her then intimate partner, Officer Everett, sometime prior to 2004, that a mediation process took place. She told him that during the mediation process she directly confronted the defendant about his behaviour and that she had gone past her own feelings and asked him to consider how his behaviour would impact on his marriage to his wife and how his actions would impact his wife if they became public knowledge.²

1 Complainant’s evidence: Committal Transcript 24.

2 Everett’s Police Statement.

·The defendant’s solicitors have a record of the existence of a file as follows: Clowes, Snr Const Tony – Mediation – Sexual Assault of Fellow Officer 078810.³ The file appears to have been destroyed around 27 February 2009. Other records confirm the relevant solicitor had carriage of the file in 1999/2000.⁴

·During a pre-text call with the defendant on 6 October 2021, the complainant doesn’t deny talking with the defendant during a HR process, rather she said “I don’t even remember that. I was in such shock. I don’t remember anything at that time because I was in such shock.”

·Officer Saunders recalls she thought the complainant wanted to do mediation with the defendant, although she doesn’t remember being present for any mediation meeting.

1. The last two matters are not direct evidence that a mediation took place, however, for the purposes of this application I will assume a mediation occurred. All records of it have been destroyed or lost, including records of who was present at the mediation and what was discussed by the complainant and the defendant.

2. The defendant also relies on Chief Superintendent Rohweder’s evidence at committal to submit that the complainant would not have alleged the defendant raped her during a mediation process. Chief Superintendent Rohweder agreed that, if a complaint of rape had been made by the complainant, he would have pursued things differently. He would have “strongly been looking at a full-blown investigation.”⁵ He also agreed that the EEO department dealt with matters such as discrimination or police misconduct such as sexual harassment.

3 Affidavit of Rachel Tierney sworn 6 October 2023.

4 Affidavit of Ella Eberhardt sworn 23 February 2024.

5 Committal Proceedings T13.

Relevant law

1. Permanent stays are an “exceptional” remedy.⁶ The reason is that they involve a permanent refusal by a court to exercise jurisdiction and thus confer on an accused a “continuing immunity from prosecution”.⁷

2. The court has power to stay an indictment to prevent an abuse of process.⁸ The power to order a stay should only be exercised in exceptional circumstances.⁹ The test is whether, in all the circumstances, unacceptable injustice or unfairness such as to constitute an abuse of process would occur if proceedings were allowed to continue.¹⁰

3. In Jago v District Court (NSW),¹¹ Mason CJ summarised when the power might be exercised as follows:

   “The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused. In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare. To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’”.12

6 GLJ v Roman Catholic Church Lismore (2023) 97 ALJR 857 at [21] per Kiefel CJ, Gageler and Jagot JJ.

7 Dupas v The Queen (2010) 241 CLR 237 at [37] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

8 Jago v District Court (NSW) (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378.

9 Jago at 31-34.

10 Walton v Gardiner at 298.

11 (1989) 168 CLR 23.

12 Jago at 33-34; citing Barton v The Queen (1980) 147 CLR 75 at 111.

Defendant’s submissions

1. The defendant submits that the appropriate remedy is a stay on the basis the defendant is seriously disadvantaged in his ability to defend the charge. The allegation relates to events occurring over 23 years ago. Much objective evidence capable of testing the allegation has been destroyed, in particular, records of the mediation.

2. The defendant submits that the evidence establishes Chief Superintendent Rohweder’s missing emails and lost records of the mediation are likely to be exculpatory. Chief Superintendent Rohweder’s evidence was to the effect that any mediation process would not have involved an allegation of any criminal conduct by the defendant towards the complainant. The lost records of the mediation and the identity of those who participated would most likely confirm that the mediation concerned merely an allegation of “sexual harassment” and nothing more.

3. Confirmation of that fact would be highly damaging to the complainant’s credit and reliability because it would show that, shortly after the alleged incident, she confronted the defendant about his behaviour but only alleged he was guilty of sexual harassment and/or did not allege he was guilty of rape. Contemporaneous notes of what the complainant said at the mediation would amount to direct evidence in the absence of a witness’ recollection of what the complainant said.

4. The defendant is therefore unable to prove, through objective evidence what was said in the mediation. Further, the complainant cannot be adequately cross-examined because she says she has no memory of a mediation taking place.

5. The defendant submits the likelihood is that the lost records would be exculpatory because they would raise a reasonable doubt that the defendant raped the complainant.

6. The defendant submits there is a genuine prospect of acquittal on the one hand, and a much lower prospect of an acquittal on the other, and so it makes a true difference from a forensic perspective, having the records or not having the records.

7. The defendant acknowledges that the mere loss of evidence will not suffice to warrant a stay, for example, where it is unknown whether the lost evidence was inculpatory

or exculpatory.¹³ However, the defendant submits different principles apply where the missing evidence is believed to be exculpatory. The defendant relies on three single judge decisions to attempt to support the submission that where it can be shown lost records will likely be exculpatory, then the trial will be unfair, and a stay should be granted.¹⁴

Respondent’s submissions

1. The respondent submits that the application should be refused. The case is word on word and the records, or lack thereof, of a mediation at their highest would be notes taken by a third party and their account of what occurred. Even if those notes were put to the complainant, she has no memory of the mediation and could not confirm or deny the accuracy of the notation, taking neither the Crown case nor the case for the defendant any higher.

2. The respondent submits that the defendant will have opportunity to cross-examine the complainant about the disclosures she made at the time of the offending and thereafter, through numerous Crown witnesses who will be called as preliminary complaint witnesses. The level of detail she disclosed is varied and no opportunity will be lost to the defendant to test this evidence and make submissions to a jury as to her credibility.

3. The defendant has not demonstrated that this case is so exceptional as to justify the granting of a stay; and lesser remedies are available and would eliminate prejudice, if any, to the defendant.

Consideration

1. The defendant submits that the appropriate remedy is a stay on the basis the defendant is seriously disadvantaged in his ability to defend the charge, absent objective evidence from a mediation between the complainant and the defendant soon after the alleged rape occurring over 23 years ago. The defendant submits the lost evidence in the present case is likely to be exculpatory and the defendant is now unable to receive a fair trial.

13 R v Edwards (2009) 83 ALJR 717.

14 R v KM [2016] QDCPR 8; R v Juides (unreported, 25 May 2022, Supreme Court of Qld, North J); R v Ansell; Bradbury [2022] QDC 148.

1. I accept that the missing evidence would likely amount not only to preliminary complaint evidence but also evidence of her confrontation with the defendant in a formal mediation process which, if inconsistent with her evidence of rape, would raise doubts as to the complainant’s credibility and reliability. I accept that it is highly likely the complainant made no complaint of penile penetration during the mediation.

2. The defendant does not submit there is any conduct of the police which would constitute an abuse of process. I consider the single judge cases, relied on by the defendant as examples where stays have been granted due to lost evidence being exculpatory, are distinguishable from the present case. Those cases focussed on police misconduct amounting to abuse of process.

3. In R v KM,¹⁵ R v Juides¹⁶ and R v Ansell; Bradbury,¹⁷ proceedings were stayed primarily on the basis of deliberate decisions made by investigating police not to obtain evidence, to conceal evidence or a failure to disclose evidence which the court determined would have or may have assisted the defence, and undermined the defendant’s right to a fair trial, in other words amounted to an abuse of process, rendering the trial unfair. Another distinguishing factor is that those cases concerned missing evidence relating to the actual offending, whereas in the present case the missing evidence relates to the credit of the complainant.

1. Certainly, those decisions refer to the possibility or probability that the destroyed or missing evidence may have been exculpatory as one of the factors influencing the decision to stay proceedings. I do not accept the defendant’s submission that those cases support any principle that, where lost evidence is likely to be exculpatory, a stay should be granted. Each case turns on its own facts.

2. In the circumstances of the present case, the records from the mediation may or may not provide evidence which would lead to an acquittal of the defendant. The complainant makes clear in her statement that she did not wish to make a criminal complaint to police at the time because she thought it would ruin her career. Any failure of her to mention she was raped by the defendant during a mediation process, as opposed to her saying she was sexually assaulted or harassed would be one of

15 [2016] QDCPR 8.

16 Unreported, 25 May 2022, Supreme Court of Qld, North J.

¹⁷ [2022] QDC 148.

several statements said to be made by her which the defence can already say are inconsistent with the complainant’s evidence that the defendant raped her.

1. The High Court in R v Edwards said:

“Trials involve the reconstruction of events, and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The facts that the Tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair”.¹⁸

1. In R v Dodds & H ex parte Attorney General¹⁹ a statement by the complainant to police in 1986 alleging sexual assault, and other documentary evidence, had been lost and there was no satisfactory explanation concerning why the respondent was not charged at that time. In 1994 the complainant made another statement to police and the respondent was charged with offences including incest. The judge at first instance granted an application to stay the proceeding. The court of appeal set aside the order granting the stay. The respondent submitted that given the police officer had decided there was insufficient evidence to proceed in 1986, there may well have been versions in the missing statement by the complainant which were totally at odds with her current statement, and which may have explained the decision not to proceed. It was further submitted that it would be unfair for the trial to proceed because the respondent would now be unable to test any possible inconsistent statements.

2. Lee J, with whom the other members of the court agreed, citing the principles applicable to granting a stay enunciated in Jago’s case, concluded there were no features “as to which a court could be satisfied that the proceedings were thereby rendered so unfair, they were insusceptible of remedy by less drastic means: Jago per Gaudron J at 78.”²⁰ He considered there was no deliberate delay on the part of the prosecution and no conduct on behalf of the prosecution which would render the continuation of the proceedings unfair. He noted that “the issue for determination is

18 (2009) 255 ALR 399; [2009] HCA 20 at [31].

¹⁹ [1996] QCA 402.

20 At page 13.

one of credibility only which can be properly tested at trial.”²¹ There are obvious similarities between that case and the present, where the main issue for a jury to determine will be the credibility of the complainant where prior statements by her at a mediation are unknown due to loss of records, but where there is other evidence of prior inconsistent statements made by her to the effect no penetration occurred.

1. I accept that the loss of mediation and other records is unfortunate, but I do not consider the loss of that evidence in light of the other available evidence would occasion prejudice to the defendant such that the proceedings are thereby rendered so unfair that they cannot be cured by the giving of a direction in accordance with s 132BA Evidence Act 1977. The jury can be directed to have regard to the significant forensic disadvantage that the defendant has experienced due to loss of evidence occasioned by the significant delay and can be given other directions that may be considered necessary to remedy any risk of unfairness, for example, a Robinson direction.²²

Orders

1. The application is dismissed.

21 Ibid.

22 Robinson v R [1999] HCA 42; (1999) 197 CLR 162.