R v Du (No 2)
[2019] ACTSC 241
•30 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v DU (No 2) |
Citation: | [2019] ACTSC 241 |
Hearing Date: | 20 August 2019 |
DecisionDate: | 30 August 2019 |
Before: | Murrell CJ |
Decision: | See [64]–[67]. |
Catchwords: | CRIMINAL LAW – STAY OF PROCEEDINGS – Where the accused charged with maintaining sexual relationship with a young person under special care under s 56 of the Crimes Act 1900 (ACT) – Where seven instances underlying the charge – Where prosecution presented three different indictments – Where final indictment presented after taking of the complainant’s pre-trial evidence – Whether prosecution fundamentally changed its case – Whether defence suffered prejudice incurable by further evidence – Whether a stay should be granted. |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 4750 Crimes Act 1900 (ACT) ss 54, 55A, 56, 60, 67 Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 63(3) |
Cases Cited: | Agresti v The Queen [2017] ACTCA 20; 13 ACTLR 1 Dupas v The Queen [2010] HCA 20; 241 CLR 237 Zonneveld v The Queen (No 2) [2018] ACTCA 31 |
Parties: | The Queen (Crown/Respondent) DU (Accused/Applicant) |
Representation: | Counsel J Hiscox (Crown/Respondent) K Archer (Accused/Applicant) |
| Solicitors ACT Director of Public Prosecutions (Crown/Respondent) Aulich Criminal Law (Accused/Applicant) | |
File Number: | SCC 15 of 2018 |
Murrell CJ
Introduction
The applicant seeks a permanent stay of his trial on a charge that, in February/March 2017, he maintained a sexual relationship with BT (the complainant), a young person under his “special care”. The Crown alleges that the complainant was under the applicant’s special care because he was her tenpin bowling coach.
Alternatively, the applicant seeks a stay of the charge until further evidence is taken from the complainant and the Crown pays his costs thrown away because of a fundamental change in the prosecution case following the pre-trial cross-examination of the complainant.
The applicant is privately funding his defence and has incurred significant costs in defending the proceedings, in part because of the asserted change to the Crown case.
The applicant was committed for trial on six charges of engaging in sexual intercourse with a young person who was under the applicant’s special care, contrary to s 55A of the Crimes Act 1900 (ACT) (Crimes Act).
The current indictment is the most recent of three indictments filed in the Supreme Court.
The first indictment, dated 16 March 2018, contained 14 counts: the charge of maintaining a sexual relationship with the complainant (contrary to s 56 of the Crimes Act); six counts alleging specific acts of non-consensual sexual intercourse with the complainant (contrary to s 54 of the Crimes Act); six charges alleging sexual intercourse with a young person under his special care (contrary to s 55A of the Crimes Act, each put in the alternative to a charge alleging a specific act of non-consensual sexual intercourse under s 54); and one charge of non-consensual act of indecency (contrary to s 60 of the Crimes Act).
The current indictment retains the charge of maintaining a sexual relationship with the complainant contrary to s 56 of the Crimes Act. However, each of the seven charges of engaging in specific non-consensual sexual acts with the complainant are now put in the alternative to the charge of maintaining a sexual relationship with a person under special care.
Rule 4750 of the Court Procedures Rules 2006 (ACT) recognises that an accused person may seek a stay of criminal proceedings. It provides that any stay application must be made and heard before the accused person is arraigned: r 4750(2). Rule 4750(3) provides:
(3) If the application is dismissed, the accused person may make a further application under subrule (1) in relation to the same or similar charges only if –
(a) there has been a significant change of circumstances; and
(b) the application is limited to the change of circumstances.
The history below shows that, on 12 October 2018, an earlier application to stay proceedings on the first indictment (which related to similar charges) was dismissed by Burns J: R v DU [2018] ACTSC 281 (DU). I am satisfied that there has been a significant change of circumstances in that the current indictment prefers different charges, and the change in the charges (and surrounding circumstances) forms the basis of the current application.
Before returning to the circumstances that have resulted in this application, it is helpful to consider the terms of ss 55A, 56 and 67 of the Crimes Act.
Legislation
Section 55A of the Crimes Act provides:
55A Sexual intercourse with young person under special care
(1) A person commits an offence if—
(a) the person engages in sexual intercourse with a young person; and
(b) the young person is under the person’s special care.
Maximum penalty: imprisonment for 10 years.
…
(2) Without limiting subsection (1), a young person is under a person’s special care if—
…
(e) the person is the young person’s sports coach; …
Other categories of “special care” include teacher/student, religious instructor/student, and employer/employee. “Young person” is defined to mean a person who is 16 years old but not yet an adult: s 55A(5).
In 2018, the present s 56 was inserted into the Crimes Act: see Crimes Legislation Amendment Act 2018 (ACT) s 4. It commenced on 2 March 2018, after the applicant allegedly committed an offence against s 56 in 2017. Previously, s 56 provided for an offence of maintaining a sexual relationship with a “young person” (defined to mean a person under the age of 16 years); it did not deal with sexual relationships with young persons who were less than 18 years old and under “special care”.
The applicant is the first person to be prosecuted under the new provision, which states (underlined emphasis added):
56Maintaining sexual relationship with young person or person under special care
(1) A person who is an adult and who maintains a sexual relationship with a young person or a person under the special care of the adult is guilty of an offence.
Maximum penalty: imprisonment for 25 years.
(2)For subsection (1), an adult maintains a sexual relationship with a young person or a person under the special care of the adult if on 2 or more occasions and over any period the adult engages in a sexual act with that person.
(3)For subsection (2)—
(a)the period, or any part of the period, may be before the amendment day; and
(b)1 or more of the sexual acts may have occurred before the amendment day; and
…
(8)A person may be charged on a single indictment with, and convicted of and punished for, both—
(a)an offence against subsection (1); and
(b)1 or more sexual offences committed by the person against the same young person or person under the special care of the person during the alleged period of the sexual relationship.
(9)Except as provided by subsection (8), a person cannot be convicted of an offence—
(a)against subsection (1) if the person has already been convicted or acquitted of an offence constituted by 1 or more of the sexual acts alleged to constitute the sexual relationship; or
(b)constituted by a sexual act in relation to a young person or person under the special care of the person if the sexual act is alleged to have occurred during the period for which the person has already been convicted or acquitted of an offence against subsection (1) in relation to the young person or person under their special care.
…
(12)For this section and to remove any doubt, any sexual act alleged to constitute a sexual relationship must constitute, or have constituted (if particulars of the time and place at which the act took place were sufficiently particularised), an offence at the time the act occurred.
(13)In this section:
…
special care—a person is under the special care of an adult if—
(a) the person is not yet an adult; and
(b) the adult—
…
(iv) has an established personal relationship with the person in relation to the provision of religious, sporting, musical or other instruction to the person …
…
I note that s 55A creates a relationship of “special care” where the accused person “is the young person’s sports coach”, whereas s 56 creates a relationship of “special care” where the accused person “has an established personal relationship with [the person] in relation to the provision of … sporting… instruction to [the person]”. This difference in terminology may raise issues about the difference between a “sports coach” and someone who is “providing sporting instruction”: whether, in the latter case (unlike the former), the alleged offending may postdate the relationship of instruction; and what it means to have “an established personal relationship” in relation to sporting instruction (whether that imposes a requirement that is a more onerous test than that of being a sports coach).
Section 67 provides:
67Consent
(1) For sections 54, 55 (3) (b), 60 and 61 (3) (b) and without limiting the grounds on which it may be established that consent is negated, the consent of a person to sexual intercourse with another person, or to the committing of an act of indecency by or with another person, is negated if that consent is caused—
…
(h) by the abuse by the other person of his or her position of authority over, or professional or other trust in relation to, the person; …
“Abuse”, “position of authority over”, and “position of … professional or other trust” are not defined in s 67 nor in the Dictionary to the Crimes Act.
First indictment and first stay application
As noted above, the first indictment (dated 16 March 2018) contained 14 counts:
(a)One count of maintaining a sexual relationship with the complainant, a person under 16 years old who was under the applicant’s special care during the period 25 February to 1 April 2017, contrary to s 56 of the Crimes Act (Count 1);
(b)Six counts of engaging in sexual intercourse with the complainant, without her consent and being reckless as to whether there was consent, contrary to s 54 of the Crimes Act (Counts 2, 4, 6, 8, 10, and 12);
(c)In the alternative to the six charges under s 54, six counts of having sexual intercourse with a young person under special care, contrary to s 55A of the Crimes Act (Counts 3, 5, 7, 9, 11, and 13); and
(d)One count of act of indecency without consent, contrary to s 60 of the Crimes Act (Count 14).
The Crown filed the supporting case statement on 22 March 2018.
In relation to Count 1, the case statement identified, as an element of the offence, that “the sexual acts constitute an offence at the time they occurred” and stated that, in order to establish that element, the Crown relied upon:
a. See elements and evidence outlined above for Counts 1-12 and below for Count 14.
In relation to the s 54 charges, the Crown relied upon actual lack of consent and, alternatively, on negated consent under s 67(1)(h) (abuse of position of authority over or position of trust in relation to BT).
The applicant sought a stay of Count 1, contending that he was exposed to double jeopardy as the Crown sought to make him liable to conviction twice for the same s 55A acts.
On 12 October 2018, Burns J delivered judgment. At [70] of DU, His Honour observed:
The history of sexual relationship offences in the ACT has not been driven by the perceived need to create an aggravated form of sexual offence, but by the need to ensure that prosecutions did not fail because of the inability of vulnerable people to provide the type of information about the date, time and place of sexual offending required by the common law. The operation of sexual relationship offences was intended to fill a gap in the prosecution of sexual offences, not to replace existing specific offences or to raise generally the principles governing the prosecution of specific offences. … In my opinion, the Crown is not entitled to seek convictions upon both the s 56(1) charge and the other specific charges under s 55A based on the same alleged sexual acts by the applicant; it must choose to proceed either on the charge under s 56(1) or on the specific charges or it may choose to charge the specific offences in the alternative to the s 56(1) offence.
Nevertheless, having regard to the discretion vested in the DPP to decide the charges upon which persons will be tried, his Honour declined to make orders staying any of the charges: at [71]. Rather, his Honour left it to the DPP to decide how it would proceed in light of his reasons.
Second indictment
Soon after his Honour’s decision, on 29 October 2018, the Crown filed a second indictment and an associated second case statement.
There were eight counts in the second indictment. The second indictment retained Count 1, the six counts of engaging in sexual intercourse without consent contrary to s 54 of the Crimes Act (Counts 2 to 7), and the count of act of indecency without consent contrary to s 60 of the Crimes Act (Count 8).
The new indictment differed from the first indictment in two important respects. First, the counts alleging specific non-consensual sexual activities were put in the alternative to Count 1. Second, the new indictment omitted the counts under s 55A of the Crimes Act that had previously been charged in the alternative to the s 54 charges. This meant that Count 1 was the primary charge and each other charge (under s 54 or s 60 of the Crimes Act) was an alternative to Count 1.
At the commencement of the associated case statement, the Crown summarised its position as follows:
[DU] (“the accused”) … is charged with maintaining a sexual relationship with [BT] between 25 February 2017 and 1 April 2017, she being a person of 16 years of age and a person under the accused’s special care; that is, the accused was [BT’s] tenpin bowling coach and driving instructor (Count 1…)
In the alternative to Count 1, the accused is charged with six counts of engaging in sexual intercourse with [BT] without her consent (Counts 2–7…) and one count of committing an act of indecency upon [BT] without her consent (Count 8…).
At the time of the incidents, the accused was 40 years of age.
Between 2014 and 2018, Tenpin Bowling Australia Ltd was recognised as a National Sporting Organisation by the Australian Sports Commission.
The case statement went on to note that an element of Count 1 was that “the sexual acts constitute an offence at the time they occurred” and that the evidence in support of that element was:
See elements and evidence outlined above for Counts 1–12 and below for Count 14.
As stated above, while the first indictment had contained 14 counts, the second indictment contained only eight counts because the alternative counts under 55A had been removed.
The defence interpreted this part of the case statement as referring to Counts 2–8 in the second indictment: that the offences upon which the Crown relied for the purposes of s 56(12) were non-consensual acts under s 54 and s 60 of the Crimes Act.
This understanding was mistaken. In fact, the prosecutor with carriage of the matter intended to prosecute Count 1 as maintaining a sexual relationship with a person in special care by reason of being the complainant’s “sports coach” and, for s 56(12) purposes, to rely upon the seven specific acts the subject of the alternative counts on the basis that they were either non-consensual acts (in breach of s 54 or s 60 of the Crimes Act, with or without reliance on s 67) or acts done in breach of s 55A Crimes Act.
Pre-trial hearing
On 5 and 6 February 2019, the complainant was cross-examined at a pre-trial hearing. The cross-examination focused on the issue of consent. The applicant’s counsel put to the complainant that she had consented to the sexual conduct and that, after the events giving rise to the accusations, she had participated in text communications with the applicant showing that she had consented to the sexual acts.
Prior to the pre-trial hearing, the Crown was unaware of the text communications.
At the time of the pre-trial hearing, the applicant’s counsel believed that, for s 56(12) purposes, the prosecutor intended to rely upon the seven specific sexual acts the subject of Counts 2–8 on the basis that each was non-consensual and amounted to an offence against s 54. Consequently, he questioned the complainant extensively about consent but put only four questions relating to any coaching relationship.
This belief was based on the fact that, for s 56(12) purposes, the case statement referred to other counts in the indictment (albeit including s 55A counts that had been removed from the indictment). Counsel’s belief may have been reinforced by the fact that the indictment charged each of Counts 2–8 in the alternative to Count 1.
However, in reality, in relation to Count 1, the prosecutor intended to rely upon the individual sexual acts the subject of Counts 2–8, regardless of whether they were consensual or non-consensual, and to assert that, even if the acts were “consensual”, they were nevertheless offences that could have been prosecuted under s 55A because of the “special care” relationship between the applicant and the complainant.
I note that, regardless of whether the prosecution relied upon a “special care” relationship for s 56(12) purposes, “special care” was an independent element that needed to be established to prove the offence against s 56 and, in that sense, was necessarily in contention at the time of the pre-trial hearing.
Events after the pre-trial hearing
After the pre-trial hearing, the Crown served the defence with an expert witness statement from Dr Sansum that addressed the issue of whether the complainant had been truly willing to participate in the sexual encounters.
With the benefit of hindsight, it is apparent that Dr Sansum’s statement was designed to address the issue of apparently willing participation in the acts the subject of Counts 2–8 (negated consent). But from the defence perspective, it served only to reinforce the misunderstanding that consent was the critical issue in relation to all counts in the indictment, including Count 1.
The trial was scheduled to proceed on Monday, 3 June 2019.
On 31 May 2019, the Crown provided the defence with a draft third indictment that changed the second indictment in minor ways; in particular, in relation to Counts 2–8, it noted that reliance was placed on s 67 of the Crimes Act (negated consent). The prosecutor spoke to the applicant’s counsel concerning the draft third indictment. In that telephone conversation, the prosecutor made it clear that, for s 56(12) purposes, the Crown relied on “special care” (breach of s 55A at the time that each act supporting a relationship occurred).
On 31 May 2019, the Crown provided the applicant with an amended case statement in support of the third indictment and to clarify the basis upon which it put its case. In relation to the element of Count 1, that was “the accused maintained a sexual relationship with another person”, the amended case statement said that the supporting material included:
d. Evidence of acts as outlined in counts 2 to 8
e. Evidence of acts as outlined in Queensland and NSW
NB: The acts constitute an offence at the time the acts occurred per s 55A Crimes Act: Sexual intercourse with young person under special care and s 61A Crimes Act: act of indecency with young person under special care.
For the first time, the applicant’s counsel realised that s 55A “special care” was an issue in relation to Count 1. Counsel wrongly concluded that, having realised the difficulties in proving lack of consent, the Crown had decided to make a last-minute change to the way in which it put its case.
On the defence application, the trial date of 3 June was vacated.
On 6 June 2019, the applicant filed this application, seeking a permanent stay of the trial or, alternatively, a conditional stay of the trial on Count 1.
On 21 June 2019, the Crown filed the third indictment, which accorded with the draft indictment provided on 31 May 2019.
Submissions
Applicant’s submissions
The applicant submitted that the Court should grant a permanent stay of the trial (or, at least, a conditional stay) because, in relation to Count 1, the Crown had changed its case at the last moment by changing the sexual acts relied upon under s 56(12). The applicant submitted that the disadvantage could not be cured by further cross-examination of the complainant because she had now had the benefit of “rehearsing” her evidence during the pre-trial hearing.
The applicant also contended that there was “prosecutorial oppression” because of the complexity and inappropriateness of the current Crown case.
As to complexity, the applicant pointed to three matters. First, in relation to Count 1, there is a subtle and confusing difference between the relevant parts of the definitions of “special care” in ss 55A and 56 of the Crimes Act. Second, in relation to negated consent (relevant to Counts 2–8), the concepts of “position of authority over” and “position of … professional or other trust” are, in this case, linked to—but different from—the “special care” requirements of ss 55A and 56 of the Crimes Act, creating further confusion and complexity. Third, the Crown intended to lead evidence of sexual incidents in Queensland, which were said to be offences against Queensland law. The applicant argued that, in doing so, the Crown was seeking to give extraterritorial operation to ACT law. The applicant foreshadowed that, at the trial, he would object to the evidence of events in Queensland because, at the time that the conduct allegedly occurred, it was not an offence in Queensland to engage in consensual sexual activity in the context of a relationship of special care. The extraterritorial issue would create further complexity and confusion.
As to inappropriateness, the applicant relied on the suggestion of Burns J in DU, that s 56 was an inappropriate prosecution vehicle in circumstances such as the present, where the complainant can identify specific sexual events, enabling the specific acts to be prosecuted.
Crown submissions
In relation to the application for a permanent stay, the Crown submitted that:
(a)In relation to Count 1, the Crown had consistently alleged that the applicant had maintained a sexual relationship with a person under his special care (in that he was her sports coach and the acts of sexual intercourse were in breach of s 55A of the Crimes Act). Regardless of whether the defence had understood that “special care” was a s 56(12) issue, the applicant should have understood that it was an essential element of the s 56 offence and should have been prepared to meet the issue.
(b)In relation to Counts 2–8, the Crown had always asserted that the applicant had engaged in sexual intercourse without the complainant’s consent, either without her actual consent or, alternatively, in circumstances where consent was negated under s 67 of the Crimes Act, because of abuse of a relationship of authority or trust. The “relationship” issue was raised in a general way under s 67 of the Crimes Act. For this additional reason, the applicant should have been prepared to meet the issue.
However, having regard to the misunderstanding, the Crown did not oppose the defence having leave to further cross-examine the complainant in relation to non-sexual relationship matters pertaining to the sporting instruction relationship (if any) under s 56 and the sports coach relationship (if any) under s 55A. To partly meet the concern about “rehearsal” of evidence, the Crown offered defence counsel an undertaking that it would only communicate with the complainant regarding logistical matters and would not discuss any matter that might be the subject of the further cross-examination.
As to the submissions about complexity and inappropriateness, the Crown submitted that it was open to the prosecution to proceed in the manner in which it was proceeding; in that sense, the charges were not oppressive or unfair.
Consideration
A permanent stay will be granted only where continuation of the proceedings would involve unacceptable unfairness or injustice that cannot be overcome, such that a trial would be oppressive and amount to an abuse of process: Jago v District Court (NSW) (1989) 168 CLR 23 per Mason CJ at 30–31, 34. In Dupas v The Queen [2010] HCA 20; 241 CLR 237, the High Court described a permanent stay as a “rare occurrence” and “a drastic remedy to be applied in exceptional cases”: at [33]. See also Tony Strickland (A Pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; 93 ALJR 1 at [106].
At the hearing of the stay application, the applicant emphasised its alternative submission, i.e. that the case fell within the category of exceptional cases justifying the granting of a stay until the Crown paid the costs of the accused thrown away by the last-minute decisions of the Crown.
In Zonneveld v The Queen (No 2) [2018] ACTCA 31 (Zonneveld), the prosecution had filed four indictments. The appellant had repeatedly sought particulars to enable him to understand the Crown case in relation to the substantive charges in the various indictments, but no particulars had been provided. Ultimately, after the appellant had incurred significant expense, the Crown abandoned the substantive charges and indicted the appellant on a fundamentally different charge (conspiracy). The appellant sought a conditional stay pending payment by the Crown of his costs thrown away by the changes. At first instance, the application was refused. On appeal, the Court of Appeal affirmed that a conditional stay pending the payment of costs could be granted, but only in exceptional circumstances, i.e. where there would otherwise be a high level of unfairness akin to “gross unfairness”: at [25]. The Court considered that the circumstances of the case were not so exceptional as to justify a conditional stay: at [34].
In this case, a misunderstanding arose as to the basis upon which the prosecution put its case on Count 1 of the indictment. The content of the case statement supporting the second indictment (substantially, the same as the third and current indictment) and other circumstances encouraged that misunderstanding. However, the prosecution did not intend to mislead the defence.
The misunderstanding affected the extent to which defence counsel cross-examined the complainant about a critical issue: the sports coach relationship/personal relationship in relation to sporting instruction between the applicant and the complainant.
In part, the misunderstanding was enabled because no Crown or defence opening address precedes the cross-examination of a complainant at a pre-trial hearing. Consequently, at this stage of the pre-trial hearing, the defence is more reliant on the prosecution case statement than is the case at trial. However, a case statement is simply a statement of the way in which the prosecution puts its case on each element of an offence; it is not a summary of the prosecution opening: R v Goodwin [2009] ACTSC 111; 233 FLR 473 per Refshauge J at [31]–[32].
In this case, the resulting prejudice can be adequately addressed by allowing the applicant a further opportunity to cross-examine the complainant on “relationship” issues. The fact that the witness will be re-called does not give rise to any significant unfairness. She will be cross-examined about a matter that has not previously been the subject of substantial cross-examination and the Crown will not discuss the matter with her before she is further cross-examined; there will be no real opportunity for “rehearsal”.
I accept that the Crown case is complex, inter alia because of the differences in the definition of “special care” in ss 55A and 56 of the Crimes Act, and the similar s 67 “relationship” concept that the jury may need to consider. No doubt, it will be a challenge for the trial judge to give clear directions. Nevertheless, many trials involve difficulty in formulating clear directions that draw subtle but important distinctions. It is well-established that the Crown may put its case on alternative bases: Royall v The Queen (1991) 172 CLR 378, Agresti v The Queen [2017] ACTCA 20; 13 ACTLR 1 at [128]. In this case, the complexities attaching to the two concepts of “special care” and the s 67 “relationship” concept do not give rise to an abuse of process because they can be addressed by the trial judge’s directions. I understand that the extraterritorial argument will be the subject of a voir dire; it may or may not be necessary for the trial judge to give directions about Queensland legislation (which may or may not differ from ACT legislation). To the extent that it becomes necessary to do so, the trial judge will give appropriate directions concerning Queensland legislation.
As to the argument that, having regard to the observations of Burns J in DU, it is inappropriate for the Crown to press a s 56 charge in circumstances where a complainant has identified specific sexual acts, that matter was canvassed before Burns J and I will not revisit it.
Orders
I am satisfied that it is in the interests of justice that the complainant be “recalled” for further cross-examination pursuant to s 63(3) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The cross-examination will be limited to matters relating to the sports coach/sporting instruction relationship (if any) between the applicant and the complainant.
Otherwise, the application is dismissed.
The matter is listed for further cross-examination on 15 October 2019.
I note the Crown’s undertaking to defence counsel that, pending finalisation of the further cross-examination, it will only communicate with the complainant regarding logistical matters and will not discuss any matter that might be the subject of the further cross-examination.
| I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |