R v D, Ph - [2005] SADC 31

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v D, PH
Ruling of His Honour Judge Bright
18 April 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS
Application to stay proceedings. Delay. Loss of opportunity to search for evidence. Loss of evidence.

R v D, PH
[2005] SADC 31

This is an application by the defence for an order permanently staying this case. The prosecution concerns allegations of unlawful sexual intercourse and other sexual impropriety between the accused, then a serving police officer, and the complainant, to whom I shall refer as DC, at a time when she was 14-15 years of age. The charged events are alleged to have occurred in 1983 and 1984.
DC complained of them in 1985. Police investigated. Police disciplinary charges were laid in 1985 against the accused. He resigned from the police. At that time, such charges could only be pursued against a serving police officer. The charges were, for that reason, dropped, or not pursued. The ambit of those charges was wider than that of the present prosecution. The disciplinary charges included such matters as the improper use of police motor vehicles in the course of the events giving rise to the present criminal charges.
No further action was taken by police at the time and it is not clear why this was so. Ms Ottens, the carer of DC claims she was told that the accused was suffering from a (by inference, terminal) brain tumour, for which reason nothing more could be done. If she was told that, it was not true. Mr Ralphs, then the police superintendent in charge of prosecutions, told me that, while he now has virtually no recall of the matter, the old police file indicates that he decided that the case in relation to the sexual allegations was not strong enough to lay criminal charges. The file was closed in 1985. DC, apparently believing that nothing more could be done, took no steps to urge police to take action until 2003, when, encouraged by reports of others raising claims of abuse many years ago, she approached police again. The matter was re-investigated and the present charges were laid.
Mr Hinton, for the Director of Public Prosecutions, has prepared a most helpful and detailed chronology. Mr McEwen, for the accused, referred to a few matters not covered in that chronology. For present purposes it is an excellent record of the history of the case. It would be otiose to repeat it all. Except where I may specifically indicate, I use it as the basis for this ruling.
Both Mr Hinton and Mr McEwen prepared detailed submissions in writing. Insofar as they relate to the law, there is not a great deal of difference between them.
It is common ground that:
(1) I have power to order a stay.
(2) That power is a power to be exercised very sparingly.
(3)It is only to be used if it is not possible for the accused to have a fair trial.
(4)A fair trial is not the same as a perfect trial.
(5)In some cases directions to juries, exclusion of evidence, or other steps may be able to be taken which would make fair a trial which would not otherwise be fair. If such steps can be taken, they should be taken in preference to ordering a stay.
There is debate about whether delay alone, viewed in isolation, can justify a stay. Whatever the answer, trials have been conducted in which stays have been refused after much longer periods than that in question here. In this case Mr McEwen does not assert that the delay alone is enough. He accepts the need to establish irremediable prejudice so serious that the trial could not be fair.
There is debate about whether the prejudice to be proved by an accused must amount to inability to call evidence or to take steps which would actually exculpate an accused or whether it is enough to point to avenues of inquiry which cannot now be pursued and which, if the prosecution had been more prompt, might have been pursued and might have uncovered evidence helpful to the defence.
The answer must be somewhere between the extremes of these two propositions. It cannot be the case that an accused must prove whatever it is he can no longer prove to get a stay. That would be absurd. Equally, it cannot be the case that, simply by pointing to some possible avenue of inquiry which can no longer be pursued, no matter how unlikely it is that such inquiry could ever have produced relevant evidence, an accused should be entitled to a stay.
There may be cases where specific known evidence is no longer available. An alibi witness might have died in circumstances where no other evidence of the alibi is available. More commonly the prejudice asserted will be inability to pursue lines of inquiry with at least a reasonable chance of locating relevant evidence. I accept the various formulations along the lines of that “being on the cards”, more fully set out in the submissions.
In my view, relevant evidence in that sense, can sometimes include evidence going only to credit. I do not suggest that every inability to challenge every witness on every point will automatically render a trial unfair. In some trials, inability to challenge some witnesses on some subjects will do so.
As Mr Hinton commented, the question is always whether the accused can have a fair trial. In assessing that, an almost infinite number of matters may be relevant. Often there will be competing considerations. Only after weighing all relevant matters in the context of the case in question can a decision be made. He submitted that no exhaustive list can be made of the factors which may be relevant. I agree.
Somewhat contrary to that submission, he also sought to distinguish a number of “stay cases” on the basis that the unavailable evidence in those cases related to the ability of an accused to establish a hypothesis which competed with that of the prosecution, whereas, in the present case, the major missing evidence related to the capacity to question the prosecution case, rather than to establish a positive defence. With respect, I do not see why there should be a distinction. I prefer his earlier submission that all relevant matters must be weighed and considered. In relation to a particular case, and on the facts of that case, his distinction might need to be considered. I do not accept it as a principle of general application.
In Jago v The District Court of New South Wales (1989) 168 CLR 23 at 60, Justice Deane set out five matters to be considered in “stay cases”. They are:
(1)    The length of the delay.
(2)    Reasons given by the prosecution to explain or justify the delay.
(3)    The accused’s responsibility for and past attitude to the delay.
(4)    Proven or likely prejudice to the accused.
(5)The public interest in disposition of charges of serious offences and in the conviction of those guilty of crime.
Mr Hinton submitted that that list was not intended to be exhaustive and that, insofar as some later cases might suggest it was, those cases are wrong. I agree. However, I think cases will be rare in which at least almost all relevant considerations do not fall within those topics. In this case they certainly do. I will consider each in turn.
1. The Length Of The Delay
The alleged events occurred in 1983 and 1984. The current charges were laid on 24/07/2003. A delay of about 20 years is very substantial. As I have noted, trials in cases with even longer delays have been permitted to proceed. Cases with shorter delays have been stayed. In either case it has been because of the effect of the delay on the case in question, rather than the period of delay viewed in isolation. As has been commented, there is no cut-off date, or period of limitation of general application. Acknowledging that there is no legal right to a speedy trial, a delay of this magnitude is usually going to make it harder for an accused to get a fair trial than if he were tried promptly.
In the context of this case, I do not think that irremediable unfairness is established by the period of delay alone. Later I will consider it in conjunction with other factors.
2. Reasons Given By The Prosecution To Explain Or Justify The Delay
I confess to some uncertainty about this criterion. The way in which delay may occur seems not very relevant to assessing prejudice to an accused. The prejudice is a result, to be assessed however it arose. Arguably conduct by the prosecution which lulled a person into a false sense of security akin to an estoppel might sound in prejudice to an accused when, thereafter, a charge was laid. That is not this case. Here there was no overt representation that criminal charges would, or would not, be laid. All that happened was that nothing happened.
Likewise, conduct by the prosecution might be relevant to the continuing public interest in seeing a matter brought to trial. Conduct that was oppressive or amounted to an abuse of process could be relevant to that. This is not such a case.
That said, the responsibility for the delay lies entirely at the feet of the prosecution. No evidence of significance to a decision to prosecute came to light after the file was closed in 1985. The only new factor was the request by DC to the police to re-open it. The 2003 investigation turned up no new evidence. Though the new investigation elicited further allegations, the charges laid are all in respect of matters about which details had been given in 1985.
A possible interpretation of events in 1985, based on the suggestion that the file was closed because the accused had a brain tumour, a matter which was not true, is that improper protection was given by police to one of their own. The evidence has not gone far enough for me to form any opinion about that. However, even if it were true, it would not seem to be a reason to stay the case – rather, it would seem appropriate to endeavour to undo any such impropriety. A stay is not to be granted to, in some mysterious way, discipline errant police officers. In the case of a “cover up” it would merely ensure the success of that cover up despite it being later discovered.
It seems to me that the relevance of the conduct of the prosecution must usually revolve around the discovery of new information and whether or not it could and should have been discovered earlier. The development of DNA technology is giving rise to important new evidence in relation to old cases. In these cases the conduct of the prosecution in not launching earlier prosecutions may be entirely understandable.
The public interest in prosecuting such cases may be greater than in prosecuting cases where there has been no good reason for delay. In cases of great delay, unexplained dilatoriness will be a factor. It is in this case.
I pause to note that no blame is attributed to DC. Her initial report was reasonably timely. She then appears to have believed she could do no more. Later, encouraged by learning of other people coming forward with old allegations of abuse, she came forward. Thereafter the matter proceeded with reasonable promptness.
3. The Accused’s Responsibility For And Past Attitude To The Delay
The accused has no responsibility for the delay in this case. If he had an attitude to it, it can only have been one of doing nothing during a period when nothing was done to alert him to any suggestion that charges would be laid.
If, by this criterion, it is to be suggested he could have taken steps to collect and preserve evidence, I think that that is unrealistic. I suspect that few people would do so. Some might keep evidence already collected “against a rainy day”, but few would expose themselves to the embarrassment of collecting evidence, such as alibi evidence, from people who might be prepared to give it, but to whom the allegations would probably have to be revealed. It is quite implausible to suggest that the accused should have requested police to obtain and secure exhibits from the complainant or others close to her.
In my view no blame rests with the accused for the delay or for any loss of evidence.
4. Proven Or Likely Prejudice To The Accused
No accused person has a legal right to require the prosecution to pursue every possible line of inquiry at endless length. However, where charges are laid promptly, there will often be the chance to rectify defects. Often evidentiary material will still be readily available. When delay is great, it is inevitable that memories will fade and that physical items of evidence will be lost or will degrade. With the passage of time it will get harder to follow up leads. Witnesses may die.
Here the accused, in his affidavit in support of this application, sets out a number of lines of inquiry which are now foreclosed because records have been lost or destroyed, or because possible witnesses have died. It is necessary to set out some further facts and allegations.
DC had a very troubled upbringing. There are suggestions she was abused by family members. She got into plenty of trouble with police. It is likely that, by the age of 14, she was sexually quite experienced. She was eventually fostered to Ms Ottens, who appears to have given her almost superhuman support. Despite that, she continued to get into trouble. Ms Ottens knew the accused and evidently asked him to take a fatherly interest in DC and to help to deal with, in particular, a relationship between DC and a much older man called “Mick”.
Evidently DC began to call on the accused at his place of work so frequently that other police officers began to joke about the relationship between DC and the accused. It is alleged that the relationship developed into one of sexual intimacy. Frequent acts of intercourse are alleged to have occurred. DC deposes to recalling certain instances from a long course of conduct. Those incidents give rise to the charges before the court.
In 1985 DC spoke first to Mr Cunningham, a police officer, who referred the case on to (then) Inspector Howie, who arranged for (then) Detective Constable - soon to be Inspector - Finnigan to take a statement from DC. She gave a very lengthy statement over several days. She identified various locations as the sites of various acts of intercourse, including a particular house, a car owned by the accused and police cars issued to him from time to time. She says that, on her 16^th birthday the accused bought her a gold ring, which he gave to her after a particular act of intercourse, together with the docket or receipt for its purchase from a particular jeweller.
Ms Ottens says she remembers the 16^th birthday – she made a cake and had a special meal. Then she put DC on a bus to Port Augusta, as she was returning to her family home. There appears to be doubt about this date as other evidence suggests she was then in custody at SAYRAC.
While she was in Port Augusta DC and the accused wrote letters to each other. Nine letters from the accused were kept and have survived. They are in endearing terms. The prosecution suggests they provide corroboration for allegations of sexual intimacy. The defence disputes that interpretation.
In her initial statement DC referred to one further instance of intercourse. In her 2003 statement she claimed a further period of frequent intercourse in 1984. Immigration and passport records indicate that the accused was not in Australia at the time nominated for this period.
Not surprisingly, there are many differences between DC’s statements of 2003 and 1985. The reasons for those differences largely remain to be explored.
After DC gave her statement to Ms Finnigan in 1985, Ms Finnigan realised the importance of locating and securing the ring and the nine letters from the accused. She arranged to fly to Port Augusta with DC to retrieve them. She had been told about the receipt for the ring. For no reason explained to me, she did not retrieve it. Mr Cunningham’s report of his initial interview with DC suggests that he saw the receipt, but did not seize it. If the receipt existed it is likely to have borne a date – a date for one of the alleged acts of intercourse. It is now lost. Early knowledge of that date (and it is the only allegation given a specific date) may have enabled the accused to have obtained alibi evidence in respect to it. Family, friends or colleagues may have had reason to recall that date, one cannot know. It is now far too late to seek such evidence.
Once DC’s statement was typed, it and the rest of the file were returned to Inspector Howie. He interviewed the accused at great length. In essence, the accused admitted getting involved in helping DC, in seeing her at work and in his car on various occasions, to drinking whisky with her, to writing the letters and to giving the ring. He totally denied any impropriety.
He spoke of DC as having a vivid imagination. He asserted that she had written a lengthy, lurid, life history, which he had read, in which she described intercourse with other men in circumstances similar to those alleged against him. DC had told Ms Finnigan about her memoirs, so Mr Howie knew about them. The memoirs were never seized or examined by police. No explanation for that has been given. Perhaps my view is illuminated by hindsight, but I cannot understand why the potential significance of the memoirs was not apparent to police. It seems clear that the accused, from the time of his first interview, claimed that he was being “framed” and that similar allegations had been made against others. Once charges were laid in 2003, the defence asked for the memoirs. Such a request was included in a Rule 20 notice at the committal proceedings. It elicited the response that police did not have it.
The officer in charge of the 2003 re-investigation failed to follow this up with any inquiry of DC. Other requests were made by the defence. Very recently, in the course of proofing DC, it became apparent that the memoirs still existed. It also became apparent that DC was most reluctant to produce them: she even hinted she might get rid of them.
The officer in charge, Mr Clark, went to her house where he saw a bundle of (apparently) A4 paper about two inches thick, in a white plastic bag. DC extracted one sheet, claiming it bore the only reference to the accused. Mr Clark left without the rest of that bundle. It seems that DC then shredded it, burnt the shreds and scattered the ashes on the beach.
Of course the forensic significance of the memoirs went far beyond that page. If they showed similar allegations against others, including other policemen, they might have lent great weight to the claim that events (real or imaginary) were falsely transferred to the accused. At the very least they would have provided material for very significant attacks on the credit of DC in the course of her cross-examination.
Mr Hinton submits that that cross-examination can still occur. That is right, but only partly right. In this case the most important question for a jury will be whether to accept the evidence of DC. After 20 years it is not realistic to expect the accused to have a detailed recall of the contents of the memoirs. It is not likely that any detail could be put to DC. If DC denies what is put, the only contradiction of that can be from the accused, whose own credit must be very much under scrutiny. That would be likely to have far less impact on a jury than production of the memoirs and proof of DC’s actual words. Apart from the potential to contradict, her own words at the time are likely to convey far more clearly the exact details and the flavour of her emotions than any reconstruction by the accused (or by her) could do now.

It is to be noted that it is not likely that the accused would have told Inspector Howie about the memoirs if he had not expected that Inspector Howie would view them and that what he said about them would prove to be true. He could not have known that nothing would be done. This argument can, obviously, be put to a jury – but its force will be far less than that of producing the actual document (assuming that it does contain the sort of material suggested).
For purposes of the stay application, I accept that the importance attached to the memoirs is not fanciful, or a recent forensic ploy. They were referred to and their significance was suggested at the outset.
A number of other lines of inquiry were referred to, which cannot now be pursued. After so long, police saw no point in attempting to trace a record of the sale of the ring at the jeweller believed to have sold it. For the reason I have already mentioned, if it were available, there is a good chance it would show a different date from that asserted by DC (and, by inference, Ms Ottens). While the date is not a crucial element of the charge, doubt about it must be relevant to credit.
Police records, now destroyed, may (or may not) have indicated that, for one reason or another, the accused was not at work at times when DC alleges he was. They may (or may not) have recorded tasks performed by the accused, and when, which may have cast doubt on allegations by DC of events occurring in conjunction with certain tasks. They may (or may not) have indicated whether police cars were in the possession of the accused at various relevant times. These lines of inquiry are more speculative. As Mr Hinton submitted, in a case where it seems likely that there will not be dispute that the accused knew and often met DC, including having her in his car on occasion, the likelihood of evidence useful to the accused of this sort having ever existed is less than in a case where, for example, the accused denied ever having met the complainant. I think that the loss of the chance to locate this evidence is nowhere near as prejudicial as the loss of the memoirs, but it is a factor to be taken into account.
It is not enough merely to point to prejudice. If the prejudice can be cured a fair trial can still be conducted. Obviously this case would call for a strong and detailed Longman direction in any case. In effect, Mr Hinton submits that I could remedy prejudice by giving an extra strong Longman direction. I am not sure how I would do that. The standard direction is to the effect that it would be dangerous to convict. I don’t see how, at a practical level, I could strengthen that (do I say: “particularly dangerous”?) without telling the jury it should not convict. If that is so, a trial is at least unlikely to be fair.
There seems to me to be no direction I could give which would restore to cross-examination of DC the force it might well have if she were to be confronted with her memoirs. Indeed, to try to do so, I would have to assume the truth of the accused’s assertions about them – a matter entirely for the jury and not for a judge. How otherwise can a jury take into account what is not able to be put in evidence?
It is not enough that DC’s credit can be challenged on other topics – such as the date the ring was bought, or the period during which she alleges intercourse when it now appears the accused was overseas. In my view the chance that a jury would entertain a reasonable doubt about the accused’s guilt would be substantially enhanced if the memoirs were available and if they proved to contain the material the accused claims it did.
5.The Public Interest In The Disposition Of Charges Of Serious Offences And In The Conviction Of Those Guilty Of Crime
Obviously the accused is to be presumed to be not guilty. In the course of a trial that presumption may be disproved. In this case, even with a fair trial, he might be convicted. The presumption does not mean that one ignores that possibility. If the allegations are true, the accused should be convicted and penalised. It is in the community interest, and a matter of important fairness and justice to DC that this should occur. Courts are set up to try such cases. Only in exceptional cases should a court decline to try a case which falls within its jurisdiction.
In a variety of cases involving impropriety by a party or, as here, unfairness to a party, courts have stayed cases. In various formulations it has been held to be an abuse or distortion of the courts process to permit such cases to proceed. Not only is that wrong in itself, it may also lead to a loss of public confidence in the courts. Even “justice” can have too high a price.
So I come to my conclusion. In this case, on its own facts, I believe that the very lengthy delay, combined with the inevitable prejudice that it has caused by way of inability to pursue various avenues of inquiry, combined with the loss of the memoirs, taken together give rise to such unfairness, being unfairness which cannot be remedied, as to make this one of those exceptional cases in which the interests of justice are better served by granting a permanent stay than by permitting the case to proceed.
I so order.