R v D, WJ - [2012] SADC 16

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v D, WJ
Criminal Trial by Judge Alone
[2012] SADC 16
Ruling and Judgment of His Honour Judge Soulio
24 February 2012
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Applicant sought stay of criminal proceedings on the basis that their continuation would constitute an abuse of process given the delay between the charged acts and the complaint to authorities.
Held: Application refused.
Criminal Law Consolidation Act 1935 (SA) ss 51, 72A, 76A; Criminal Law Consolidation Act Amendment Act No. 98 of 1985 s 5; Evidence Act 1929 (SA) ss 34CB & 34M; Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act Amendment Act No. 14 of 2003; The District Court (Criminal and Miscellaneous) Rules 1992 (SA) r 8; Statutes Amendment (Evidence and Procedure) Act 2008 No. 7 ss 16 & 18, referred to.
R v Liddy [2010] SADC 80; Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; Walton v Gardiner (1993) 177 CLR 378; Williams v Spautz (1992) 174 CLR 509; Police v Sherlock (2009) 103 SASR 147; R v Glennon (1992) 173 CLR 592; R v Littler (2001) 120 A Crim R 512; Dupas v The Queen (2010) 241 CLR 237; Police v Pakrou (2008) 103 SASR 124; R v T (1985) 38 SASR 428; R v Pinder (1989) 155 LSJS 65; R v Davis (1995) 81 A Crim R 156; R v Horsfall (1989) 51 SASR 489; R v J G (2009) 199 A Crim R 299; Longman v The Queen (1989) 168 CLR 79; R v Seigneur (2009) 103 SASR 207; R v Hakim (1989) 41 A Crim R 372; R v Austin (1995) 84 A Crim R 374; R v Lane (unreported, Wilcox, Ryan and Higgins JJ, 19 June 1995); R v Liddy (No 4) [2001] SASC 152; R v Polyukhovich S 3782 (unreported, Cox J, 7 December 1992); R v Ulman-Naruniec (2003) 143 A Crim R 531; R v Glynn (2002) 82 SASR 426; R v PNJ (No 2) (2007) 99 SASR 1, considered.

R v D, WJ
[2012] SADC 16
Introduction

By Information dated 14 October 2010 the applicant was charged with the offence of persistent sexual exploitation of a child, pursuant to s 51 of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The particulars of the alleged offence are that the applicant had:
Over a period of not less than three days between the 23^rdday of December 1955 and the 23^rdday of December 1959 at DP and WC persistently sexually exploited the complainant, a person under the age of 17 years, by causing her to touch his penis through his clothes, putting his penis in her mouth, and by inserting his penis into her vagina.
The applicant elected, pursuant to s 7 of the Juries Act 1927 (SA), for trial by a Judge sitting without a jury.
The Application
The applicant filed an application pursuant to r 8 of The District Court (Criminal and Miscellaneous) Rules 1992 (SA) seeking an order that the proceedings be permanently stayed on the grounds that their continuation would constitute an abuse of the Court’s processes due to:
1.1The very substantial delay between the alleged commission of the offences subject to these proceedings, including uncharged acts alleged to have been committed in 1949 and the trial of these proceedings in 2011;
1.2The evidentiary prejudice the defendant has suffered as a result of the substantial delay preventing him from receiving a fair trial;
1.3The prejudice the defendant has suffered as a result of the substantial delay resulting in Sections 34CB and 34M of the Evidence Act, 1929 (SA) applying to his trial, which will prevent the Jury being given a Longman warning or any warning about the dangers of convicting on oral evidence of events over 60 years ago and will prevent the accused submitting to the Trial Judge that the complainant’s delay in complaining is relevant to her credibility; and
1.4To permit the trial to proceed would amount to objective persecution in all of the circumstances.[1]
[1] The grounds as set out in the application for a permanent stay.
By the time the application came on for hearing, the acts constituting the charged offence were said to have been committed between 52 and 56 years earlier. On the prosecution case the applicant committed other uncharged acts against the complainant as early as 1949, over 60 years before the hearing.
The material upon which it was agreed that the application should proceed included, the complainant’s declarations dated 5 December 2009, 11 May 2011, (two) and 13 May 2011; the declaration of the investigating officer, Detective Franz dated 5 January 2012; affidavits of the applicant’s solicitor, Peter William Forbes Morrison, sworn 23 March 2011 and 9 January 2012, together with the annexures to those affidavits; and the outline of submissions and authorities of the applicant and the Director of Public Prosecutions.
There was no application to cross-examine the witnesses as to the contents of their declarations, nor the deponent of the affidavits.
Power to Stay Proceedings
As was observed in R v Liddy:[2]
This court has power to permanently stay criminal proceedings in circumstances where to continue with those proceedings would constitute an abuse of process. The power is either an implied power or an aspect of this court’s inherent jurisdiction to regulate its own processes. The power to order a permanent stay is discretionary, to be exercised sparingly, and only in exceptional or extreme cases. The onus of satisfying the court of an abuse of process lies on the party alleging it and the onus, is a “heavy one” to discharge. (citations omitted)
[2] R v Liddy [2010] SADC 80 per Nicholson DCJ at [7].
The categories of cases in which the inherent power to stay proceedings might be enlivened, cannot be precisely delineated.[3]
[3] Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23 at 74 per Gaudron J.
As the High Court said in Batistatos v Roads and Traffic Authority of New South Wales:[4]
Abuse of process cannot be restricted to ‘defined and closed categories’ because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of ‘abuse of process’ is at large, or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ or ‘productive of serious and unjustified trouble and harassment’.
[4] Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at 267.
The power is certainly not limited to the well established circumstances justifying a permanent stay of proceedings, to which I have referred, namely proceedings pursued for an improper purpose,[5] and proceedings brought for frivolous, vexatious or oppressive purposes.[6] Delay, and its attendant consequences on a party’s ability to fairly meet a case sought to be made against him, can attract the exercise of the discretionary remedy.[7] In particular the unavailability of identified evidentiary material that might have assisted the defence of a criminal charge in a material way, may provide a foundation for the exercise of the power.[8]
[5]    Williams v Spautz (1992) 174 CLR 509.
[6]    Walton v Gardiner (1993) 177 CLR 378 at 392-393 per Mason CJ, Deane and Dawson JJ.
[7]    Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23 at 58 per Deane J, cited with approval in Walton v Gardiner (1993) 177 CLR 378 at 394 per Mason CJ, Deane and Dawson JJ.
[8]    Police v Sherlock (2009) 103 SASR 147 at 154-155 per Doyle CJ.
As Deane CJ observed in Jago v The District Court of New South Wales:[9]
If circumstances exist in which it can be seen in advance that the effect of prolonged and unjustifiable delay is that any trial must necessarily be an unfair one, the continuation of the proceedings to the stage of trial against the wishes of the accused will constitute an abuse of that curial process. In such a case, the continuation of proceedings to the stage of trial will inevitably infringe the right not to be tried unfairly and a court which possesses jurisdiction to prevent abuse of its process, possesses jurisdiction, at the suit of the accused, to stay the proceedings pursuant to that power.
[9] Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23 at 57-58.
The question is not whether the prosecution should have been brought, but whether the court, whose function it is to dispense justice with impartiality and fairness to the parties and to the community, should permit its processes to be employed in a manner which gives rise to unfairness.[10]
[10] Ibid at 28 per Mason CJ.
Where, as here, the application for a stay is based on unfairness or injustice, the discretion may be exercised in order to remedy a fundamental defect of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.[11] A trial in such circumstances would not be a fair trial according to law.[12]
[11] R v Glennon (1992) 173 CLR 592 at 605-606 per Mason CJ and Toohey J.
[12] Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23 at 75 per Gaudron J.
The court is required to embark on a two stage process in order to determine whether the inherent power ought to be exercised.
First it is necessary to determine whether any unfairness, injustice, prejudice or oppression has been established that might enliven the power to stay proceedings.
Consideration of the exercise of the power to stay proceeding will arise whenever the processes of the court “… may be converted into instruments of injustice or unfairness.”[13] Counsel for the applicant submitted that the justification for exercising the power will be more compelling where substantial delay results in an accused being deprived of the forensic tools that could be employed in order to mount a proper defence. To conduct a prosecution in circumstances where the accused is constructively deprived of the opportunity to make a proper answer to the case against him may be unfair or oppressive.
[13] Walton v Gardiner (1993) 177 CLR 378, at 392-393 per Mason CJ, Deane and Dawson JJ.
Here, the applicant argued that the extensive delay between the time of the alleged misconduct, and the trial of the criminal charge, meant that a number of relevant witnesses and other evidentiary material had become unavailable or inaccessible in the intervening period. Accordingly, the submission was made, the capacity of the court to provide the applicant with a trial that is not unfair will require careful consideration.[14]
[14] See R v Littler (2001) 120 A Crim R 512.
The second stage of the inquiry involves the subjective balancing of a variety of factors and considerations, among which 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.[15]
[15] Walton v Gardiner (1993) 177 CLR 378, at 395-396 per Mason CJ, Deane and Dawson JJ.
In considering the approach to be taken in that balancing process, Kourakis J observed, in Police v Pakrou,[16] that the relevant considerations included the nature and strength of the evidence to be called as part of the prosecution case. If there is no feature of the evidence that creates any difficulty in properly weighing its probative value, then the case for a stay would be less compelling. However, where the evidence relied upon by the prosecution may be “insusceptible of rational or safe forensic evaluation, whether because of delay or any other cause” the risk of an unsafe conviction may arise and provide adequate justification for the exercise of the exceptional power.[17]
[16] Police v Pakrou (2008) 103 SASR 124 at [71-74].
[17] Police v Sherlock (2009) 103 SASR 147 at [103].
A further consideration is the degree of risk that any conviction, based on the evidence to be adduced, would be attended by a miscarriage of justice. The degree will necessarily vary having regard to the nature of the evidentiary material lost, destroyed or no longer available, and any explanation for its absence.[18]
[18] In Police v Pakrou the lost evidence consisted of security footage which had been destroyed.
A third consideration identified by Kourakis J was the public interest in prosecutions for serious offences, based on a reasonable evidentiary foundation, proceeding to trial,[19] although the relevant public interest is a public interest built on an underlying proposition that the public has no interest in seeing the disposition of charges and the conviction of those guilty of crimes, if such outcomes follow litigation that is unfair, prejudicial, oppressive or unjust.[20]
[19] Police v Pakrou (2008) 103 SASR 124 at [73].
[20] Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23 at 33 per Mason CJ, and at 72 per Toohey J.
As was observed in R v Davis:[21]
The point, no doubt, is that, although there is a public interest in bringing allegations of serious criminal conduct to trial, there is no public interest in doing so under circumstances of irreparable unfairness. It is more important to retain the integrity of our justice system than to ensure the punishment of even the vilest offender. We do not say this because the justice system is some precious preserve of the judges; it is not. We say this because the integrity of the justice system is a fundamental and essential element in the maintenance of a free society. Our society should not buy the conviction of its guilty at the cost of allowing trials which would inevitably risk convicting also the innocent.
[21] R v Davis (1995) 81 A Crim R 156 at 165.
Factors Relied Upon by the Applicant
Delay
The complainant first reported this matter to police in 1993. At the time she requested that no action be taken.
In fact, no action could have been taken at that time because the charges were statute barred by the operation of s 76A of the CLCA which provided:
(1)No information shall be laid for an offence to which this section applies more than three years after the commission of the offence.
Section 76A thereby precluded prosecutions commenced more than three years after the alleged offences.[22] That section was repealed by s 5 of the Criminal Law Consolidation Act Amendment Act No. 98 of 1985, effective from 1 December 1985. The repeal applied retrospectively, but was incapable of reviving prosecutions after the three year limit had elapsed.[23]
[22] R v T (1985) 38 SASR 428.
[23] R v Pinder (1989) 155 LSJS 65.
Subsequently, by amending Act No 14 of 2003, s 72A of the Criminal Law Consolidation Act was enacted, abolishing any time limitation for the prosecution of this type of offending. The section relevantly provided:
Division 14—Procedure in sexual offences
72A—Former time limit abolished
Any immunity from prosecution arising because of the time limit imposed by the former section 76A is abolished.
Accordingly, charges could have been laid with respect to this matter, from the 17 June 2003 when s 72A came into operation.
The fact that the statutory bar has been removed, and the within proceedings therefore validly instituted, cannot, of course, be an entire answer to a question of this nature. [24]
[24] Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at 280.
The complainant had performed work as a victim support person and court companion[25] and, I infer, would have been familiar with the removal of the limitation period. She did not, however, take the matter up with police again until 2009.
[25] Page 17 of declaration 5 December 2009, and p 3 of declaration 13 May 2011.
It is not necessary to determine the blame for the delay and consequential unfairness.[26] The determination of the application for a stay for abuse of process is concerned with the consequences of external factors on the fairness of litigation, whether by lapse of time or loss of evidence, rather than solely concerned with the malfeasance or laxity. I accept that it is not incumbent upon the applicant to demonstrate that the complainant was at fault for the delay.
The Allegations
[26] Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at 281.
The complainant asserts, in her declarations, that the sexual acts committed against her fall into two broad categories. The first involves sexual acts committed against her at the family home, in particular when she had been sent home from a neighbour’s house, and was alone in the family house with her father. The second category of sexual acts were said to have been committed on numerous occasions when the applicant collected the complainant after Girl Guides meetings.
The complainant identified the vehicles in which she said the sexual acts occurred after Girl Guides, one of which was a work vehicle, and one of which was an identified private vehicle. She asserted that she had been sent to live with an aunt and uncle for a period because of something the applicant had done to her. She made assertions about the nature of the relationship between her and her father, and between her and her mother.
Loss of Evidence
The applicant’s argument is that the present circumstances mean that the delay is such as to compromise the court’s capacity to properly assess the true value of the evidence of the complainant in circumstances where the means through which deficiencies in her account might be exposed, have long since disappeared.[27]
Witnesses Now Deceased
[27] See Police v Pakrou (2008) 103 SASR 124.
Counsel for the applicant submitted that witnesses, now deceased, identified in the declarations of the complainant, could have either corroborated or contradicted critical elements of the complainant’s account, but because of the extensive delay the court is deprived of the opportunity to determine whether those witnesses would support or undermine that account.
The applicant asserts that it is a reasonable possibility that the witnesses would have undermined the complainant’s account to such an extent that no reliance could be placed upon her evidence or its trustworthiness.[28] Accordingly, requiring the applicant to face trial, the applicant said, would carry a substantial risk of a miscarriage of justice.
[28] R v Littler (2001) 120 A Crim R 512.
The applicant tendered, in support of the application, a draft statement of the applicant’s wife taken on 16 May 2011. The applicant’s wife unfortunately died on 7 September 2011. It was common ground, for the purposes of the application for a stay, that the statement was indeed a statement taken from the applicant’s wife, by the applicant’s solicitors, and represented, in essence, what the applicant’s wife would have said in evidence-in-chief had she been available to give evidence.
The draft statement, it was submitted, raised the irresistible inference that, had the applicant’s wife been available to give evidence, her evidence would have contradicted allegations by the complainant in her declaration: that the applicant abused her in the hallway of the family home in August 1951 in the presence of other family members; that the applicant behaved inappropriately when bathing the children; that the applicant excessively disciplined the complainant; that the complainant was sent home from her neighbour’s house in circumstances which provided the applicant with an opportunity to sexually abuse her; that the applicant collected the complainant from Girl Guides sessions in other than a timely fashion; that the applicant had a scar on his penis; that the complainant accused the applicant of impregnating her; and that the relationships between the members of the family were other than harmonious.

The applicant points to other potential witnesses, now deceased, who may have been able to contradict the complainant’s account of events insofar as they were said to be either present or near the site of alleged offending; exposed to or involved in the immediate aftermath of the alleged offending; were said to have provided opportunity for the applicant to offend against the complainant; or were involved in the complainant’s relationship with her parents following the alleged abuse.
The identified witnesses include, in addition to the applicant’s wife, the complainant’s aunt and uncle with whom she went to stay, her paternal grandfather who lived in the family house, her maternal grandparents with whom her sister went to stay, the complainant’s former husband who often visited the house, and the neighbours from whose house the complainant was allegedly sent home to stay with the applicant.
I accept that the applicant should not be required to identify with precision what witnesses, now deceased and therefore unavailable, would have said had they been available to give evidence. In R v Davis in reinforcing the presumption of innocence the court observed:[29]
Some people, rightly anxious that sexual offenders be brought to account, may be disappointed by our decision. They may think that it allows a guilty man to escape justice. But that conclusion necessarily involves the assumption that Dr Davis is in fact guilty of the offences with which he has been charged. The correctness of that assumption could only be determined by a fair trial.
[29] R v Davis (1995) 81 A Crim R 156 at 165.
Counsel for the accused submitted that the corollary of that presumption of innocence is that there must be a reasonable possibility that such witnesses would assist the applicant in meeting the allegations.
Documents Destroyed
The documentary records no longer available include documents relating to the complainant’s involvement in Girl Guides, the complainant’s hypnotherapy, the complainant’s attendances at Yarrow Place, the Clovelly Park Community Health Centre, the Southern Women’s Community Health Centre, and the Victims of Crime Service, the applicant’s employment history, and the applicant’s ownership of or access to motor vehicles during the relevant period.
The applicant had made attempts to obtain documentary evidence which might contradict the complainant’s account, but such attempts were futile because the records in question had long since been destroyed. The documentary material, which was said to have had the potential to contradict the complainant’s account, included evidence as to when and for what period the complainant attended Girl Guides; periods of employment relating to the applicant which may have contradicted the complainant’s evidence regarding sexual acts taking place in identified work vehicles; and similar documents in relation to private vehicles said to have been owned by the applicant at the relevant time.
In addition, the applicant points to the unavailability of medical and school records which would have the potential to contradict the complainant’s evidence.
Counsel for the applicant relied on the decision of the Full Court of the Federal Court in R v Davis, where on appeal the trial Judge’s decision to stay 14 counts of indecent assault involving 13 complainants, was upheld.
The acts of indecent assault alleged against Dr Davis were said to have occurred between 1960 and 1974. Dr Davis retired from practice in 1993 by which time his secretary had destroyed the medical records of ex-patients. One of the complainants had, in 1969, reported, to a person in authority, what was said to be an assault. In 1994 a newspaper article was published relating to the 1969 report. With the exception of the one complainant, the other complainants came forward after publication of a newspaper article regarding the 1969 report and subsequent investigation. Dr Davis deposed, in an affidavit, that he generally could not recall the complainants. His patient cards, which would record the fact of whether or not he carried out an internal medical examination, the date on which he did so, and the clinical signs and reasons for carrying out the medical examination, were no longer available.
At first instance, on the application for a stay, Gallop J concluded:[30]
This is an extreme case which does not depend on the making of an order on the basis of delay alone. In addition, the destruction of the records and, in the case of several complainants, the flimsiness of the element of the absence of consent, make it just that a permanent stay of criminal proceedings in the Magistrate’s Court be granted. There is a fundamental defect which goes to the root of those proceedings and there is nothing that a Magistrate could do to relieve against its unfair consequences. The lapse of time is such that the proceedings are necessarily unfair so that any committal for trial of the applicant on such stale allegations would bring the administration of justice into disrepute.
[30] Cited in R v Davis (1995) 81 A Crim R 156 at 161.
Here, counsel for the applicant submitted that to put the applicant on trial would expose him to an unacceptable risk of an unfairly prejudiced and unjust trial, and thus a miscarriage of justice, having regard to the extensive delay between the alleged misconduct and the trial, the consequential forensic disadvantage arising from the death of a number of witnesses integral to the complainant’s account of events, and the loss of evidentiary material.
Hypnotherapy and Attendant Issues
That risk, it was submitted, was compounded by the circumstance that in about 1992, after the complainant suffered significant injuries in a motor vehicle accident, she underwent hypnotherapy in relation to, amongst other things, the alleged offending. Investigations by police in relation to that treatment have come to nothing; the doctor in question has no memory of the complainant, the notes of the sessions are not available, and possible recordings of the sessions are not available.
The issue of hypnotherapy raises an additional problem. The applicant submitted that no investigation had been conducted into this aspect of the complainant’s reliability, notwithstanding what was described as the well established experience with the courts that the memory of witnesses exposed to this form of psychological manipulation may suffer from a multitude of deficiencies.[31]
Change in the Law – Measures to Correct Unfairness
[31] See for example R v Horsfall (1989) 51 SASR 489; R v J G (2009) 199 A Crim R 299.
Prior to the introduction of s 34M and s 34CB of the Evidence Act 1929 (SA), in a case of this nature, directions to a jury would be required to explain the applicant’s loss of those means of testing the complainant’s allegations which would have been open to him had there been no delay in prosecution – and the fact that – had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant’s story or confirming the applicant’s denial.
As was observed in Longman:[32]
After more than 20 years, that opportunity was gone and the [complainant’s] recollection of them could not adequately be tested. The fairness of the trial had necessarily been impaired by the long delay … to leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice.
[32] Longman v The Queen (1989) 168 CLR 79 at 91 per Brennan, Dawson and Toohey JJ.
Decades after the alleged offence, but prior to the matters being again reported to authorities in 2009, amendments were made to the Evidence Act, which amendments apply to the present hearing.[33]
[33] R v Seigneur (2009) 103 SASR 207.
First, by s 18 of amending Act No 7 of 2008, s 34M was inserted into the Evidence Act. Section 34M relevantly provides:
(1)This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(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.
Examples—
Evidence may be given by any person about—
•       when the complaint was made and to whom;
•       the content of the complaint;
•       why the complaint was made to a particular person at a particular time;
•       why the alleged victim did not make the complaint at an earlier time.
(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 (intellectual impairment   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).
Second, by s 16 of amending Act No 7 of 2008, s 34CB was inserted into the Evidence Act. Section 34CB relevantly provides:
(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.
Note—
See Longman v The Queen (1989) 168 CLR 79
(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.
Counsel for the applicant submitted that the introduction of the new sections limited the capacity of the court to give itself directions that had long been regarded at common law as essential to avoid a miscarriage of justice and preserve the fairness of a trial which takes place so long after the events of which complaint is made.
Further, it was submitted, the removal of the ability of the court to give a Longman direction, requires an increased vigilance in assessing whether the prejudice to be suffered by an accused, should a trial proceed, is irreparable.
The Accused’s Health
The fact that an accused’s health has deteriorated during a delay in prosecution may mean that a continuation of the prosecution is oppressive.[34] However, that deterioration must be serious and demonstrable to justify a permanent stay of proceedings.[35]
[34] R v Hakim (1989) 41 A Crim R 372.
[35] R v Austin (1995) 84 A Crim R 374.
In support of the application, the applicant’s solicitor annexed to his affidavit of 9 January 2012 reports dated 13 March 2011 and 6 January 2012 from the applicant’s general practitioner. The general practitioner reported that the applicant suffered cardiac arrhythmia, reduced heart function, ischemic heart disease, had a prosthetic heart valve, suffered high cholesterol, emphysema, reduced renal function, type 2 diabetes, sleep apnoea, gout, and osteoporosis, and required either occasional or constant use of some 13 different medications. However, the general practitioner went on to say that the applicant was a reliable, respectful and pleasant person, who serves his community by acting as a Justice of the Peace, including at the Port Adelaide Courts and at the Charles Sturt Council.
Consideration of the Applicant’s Case
Delay
In legislating to remove the statutory limitation on the prosecution of charges involving sexual offences, it must have been contemplated that allegations of sexual misconduct said to have taken place many years, and even decades earlier, would be pursued.
It is not uncommon that there be delay in the reporting of sexual matters, particularly when the complainants are children, and even more particularly where the complainant is in some form of familial relationship with the accused.
As was observed in R v Lane:[36]
… it is commonplace for there to be a substantial delay in the reporting of alleged sexual assaults, especially where the complainant is a child … it seems that many sexual assault victims are unable to voice their experience for a very long time. To adopt a rule that delay simpliciter justifies a stay of criminal proceedings would be to exclude many offences, particularly offences against children, from the sanctions of the criminal law.[37]
[36] R v Lane (unreported, Wilcox, Ryan and Higgins JJ, 19 June 1995), cited in R v Davis (1995) 81 A Crim R 156 at 158-159.
[37] R v Liddy (No 4) [2001] SASC 152.
Even though the delay between the acts said to constitute the charge, and the trial, might be described as an extraordinarily long delay, that is not of itself a basis for granting a permanent stay of the proceedings. In R v Polyukhovich, Cox J said:[38]
It would be a rare case in which mere delay, even very long delay, would lead to a stay in the absence of some evidence of actual prejudice of the accused … abuse of process in this context is all about the risk of an unfair trial and what may be done about it, and a long delay between offence and trial will not inevitably lead to unfairness … it seems better to say that in certain cases, depending on the nature of the evidence, the longer the delay the more readily will the court infer prejudice to the accused by reason of that delay. Every case has to be judged on its own facts, with particular attention to any countervailing … steps – procedural directions, for example, or warnings to the jury – that may be taken by or by order of the court, before or during the trial, to deal with the apprehended unfairness.
Absence of Witnesses and Loss of Documents
[38] R v Polyukhovich S 3782 (unreported, Cox J, delivered 7 December 1992).
In circumstances where there is such a significant delay between the alleged sexual misconduct and trial, the investigating police have a duty to search out contemporaneous witnesses who might be able to shed light on the relevant circumstances. It is not appropriate to leave this investigation to the defence. Although it is for the applicant to establish such prejudice as would justify a stay of proceedings, this should be in the context of a full and adequate investigation by the prosecuting authorities which provides a context that enables the court to evaluate in a sensible way the extent of the prejudice affecting the accused.[39]
[39] R v Littler (2001) 120 A Crim R 512 at [25] per Adams J.
However the mere absence of material witnesses due to delay would not necessarily deprive the accused of a fair trial. As Cox J observed in R v Polyukhovich:[40]
A fair trial is not the same as a perfect trial, and it is certainly not the case that a trial will necessarily be unfair in the relevant sense unless all possible witnesses are available to give evidence.
[40] R v Polyukhovich S 3782 (unreported, Cox J, delivered 7 December 1992).
In the present case, whilst it is apparent that certain witnesses identified by the applicant were no longer available to give evidence, important evidence was available as to, for example, the nature of the personal family relationships and dynamics, the employment of the applicant, the period at which certain motor vehicles were owned or used by the applicant, and the attendance of the complainant at Girl Guides, albeit that much of such evidence may be attended by the deficiencies of memory that a delay of such length must, of necessity, produce.
Further, counsel for the Director submitted that the acts comprising the charge of persistent sexual exploitation occurred in private, in that the alleged acts of indecent assault, gross indecency and carnal knowledge occurred inside a motor vehicle at a relatively isolated location, after the complainant had been collected from Girl Guides, and acts of indecent assault and gross indecency were alleged to have occurred inside the family home while the applicant and the complainant were the only people at home.
Counsel for the Director submitted that no matter when the prosecution was brought, it was not feasible that the applicant would have been able to account for his whereabouts on each of the numerous occasions on which the acts are alleged to have taken place, nor is it feasible that other members of the household would recall their whereabouts, or the whereabouts of the accused on such occasions.
I bear in mind, however, that the applicant’s submission is not based on the loss of potential alibi witnesses for the specific acts, but rather the loss of witnesses whose evidence might serve to contradict that of the complainant on important surrounding issues. Counsel for the Director properly acknowledged that the absence of the witnesses on such issues, particularly the absence of the accused’s wife and the accused’s father, constituted a potential detriment to the accused.
Further, in response to the application, counsel for the Director submitted that vagueness or uncertainty in the evidence of witnesses called was more likely to be damaging to the prosecution case, and that it was appropriate for the court to take into account the nature and effect of any forensic disadvantage resulting from the loss of documentary evidence, when scrutinising the evidence, within the meaning of s 34CB of the Evidence Act.
Changes in the Law
The new sections do not prohibit the giving of a direction on forensic disadvantage, but rather constrain the direction to be given within the terms of sub-s (2) of s 34CB. Such a direction may nevertheless serve to ameliorate the disadvantage suffered by the applicant, particularly, it seems to me, in the case of a trial being heard by a judge sitting alone.
The Accused’s Health
Whilst the applicant is of advanced years, and suffers a number of the medical conditions which accompany such advanced years, his various conditions appear to be reasonably well controlled. There is no suggestion of any loss of acuity of mind. I do not consider that the applicant’s state of health, either standing alone, or in combination with the other factors, is sufficient to warrant a stay of proceedings.
Conclusion
The nature of the exercise was described by Gallop J in R v Davis at first instance in the following terms:[41]
The decision whether to stay the committal proceeding against the applicant has to be the result of a weighing process involving subjective balancing of the various factors and considerations supporting or militating against a conclusion that a continuation of the proceedings would be so unfairly and unjustifiably oppressive of the applicant as to constitute an abuse of the Magistrate’s Court process. The comparative weight to be given to particular considerations and factors in that weighing process and the ultimate outcome of it involves a substantial element of individual judgment.
[41] R v Davis (1995) 81 A Crim R 156, approved on appeal.

Counsel for the applicant properly conceded that the grant of stay is an exceptional remedy, designed to address litigation that is an abuse of the court’s processes or which would be productive of injustice or forensic unfairness to one party should it be allowed to continue.[42]
[42] Walton v Gardiner (1993) 177 CLR 378, at 392-393 per Mason CJ, Deane and Dawson JJ.
As Bleby J observed in R v Ulman-Naruniec:[43]
It is, therefore, not the case that any perceived unfairness in a trial will result in a permanent stay. It seems that at least three of the Judges of the High Court in Jago consider that there must be something so exceptional in the apprehended unfairness that it cannot be corrected by other measures open to the court, and that there is a necessary balancing requirement between the apprehended unfairness on the one hand and the public interest in trying persons charged with criminal offences on the other, the latter yielding only when continuation of the prosecution will lead to oppression and injustice and is thus inconsistent with the recognised purposes of the administration of criminal justice.
[43] R v Ulman-Naruniec (2003) 143 A Crim R 531 at [24].
A permanent stay based on abuse of process is a remedy of last resort, and there must be no other means available to bring about a fair trial.[44] An important public interest consideration is the interest of victims and their families in having the person who has harmed them charged and prosecuted.[45]
[44] R v Glynn (2002) 82 SASR 426.
[45] R v PNJ(No 2) (2007) 99 SASR 1 at [33] per Gray J, Duggan J concurring.
The delay here is an extraordinarily long delay. The prosecution of the case is attended by a number of difficulties, and witnesses who might have been able to give salient evidence are no longer available to do so. The applicant’s wife, who, it appears, could have given evidence which contradicted certain aspects of the complainant’s evidence, has recently passed away. Documentary evidence relating to the applicant’s employment, and possession or use of motor vehicles is no longer available, and medical records and documents relating to the hypnotherapy sessions undertaken by the complainant are no longer available.
To repeat the observation of Cox J, a fair trial is not the same as a perfect trial, and it is certainly not the case that a trial will necessarily be unfair in the relevant sense unless all possible witnesses are available to give evidence.
It is necessary to consider the mechanisms available to redress the complaints identified by the applicant,[46] and to consider whether appropriate directions, the exclusion of evidence, or other procedural orders, would remedy the complaint of unfairness. If so, the court’s ability to administer justice impartially and unfairly would not be compromised and a stay should not be ordered.[47]
[46] Williams v Spautz (1992) 174 CLR 509 at 519-520.
[47] Dupas v The Queen (2010) 241 CLR 237 at 248-250.
Bearing in mind the nature of the allegations, such evidence as is available, and the directions I am able to give myself as a judge sitting without a jury, as to the significant forensic disadvantage suffered by the accused, I do not consider that the evidence is insusceptible of rational or safe forensic evaluation. The prejudice to the applicant, which I accept does exist, is not outweighed by the public interest in having the charge tried.
Accordingly I refuse the application.