R v F

[2004] QDC 185

DISTRICT COURT OF QUEENSLAND

CITATION:	R v F [2004] QDC 185
PARTIES:	The Queen v F
FILE NO/S:	BD340/04
DIVISION:	Criminal Jurisdiction
PROCEEDING:	Application for Stay
ORIGINATING	Brisbane District Court
COURT:
DELIVERED ON:	18th of June 2004
DELIVERED AT:	Brisbane
HEARING DATE:	11th of June 2004
JUDGE:	Judge Forde
ORDER:	1. The indictment is permanently stayed.
CATCHWORDS:	APPLICATION FOR PERMANENT STAY – INADEQUATE PARTICULARLY – SEXUAL OFFENCES – USE OF PHOTOGRAPHS TO ASSIST COMPLAINANTS – INJUSTICE TO ACCUSED – s590AA Criminal Code
Jago v District Court New South Wales (1989) 168 CLR 23. R v F Court of Appeal 439/94 12 December 1994. R v R No. 445/97 Cout of Appeal 6 May 1998. S v R (1989) 168 CLR 266. Stanton v Abernathy (1990) 48 A Crim R 17.
COUNSEL:	Mr P Goodwin for the Crown Mr P Murphy for the Defendant
SOLICITORS:	Director of Public Prosecutions Robertson O’Gorman Solicitors

1. There have been several applications in this matter. The first involved an application for permanent stay of proceedings in relation to Count 13 on the indictment. That Count related to an alleged rape. Reasons have been given in that matter. The next application was for an application for a stay on Counts 1-12 based on that fact that police had shown photographs to the complainants and that was an improper procedure given the lack of particularity relating to the count. That application was refused[1] but as part of the reasoning in that case it was accepted that if there were other grounds, for example lack of particularity relating to the offences that the matter would be revisited.[2] The Crown was given an opportunity to test the factual basis upon which the submissions were based by checking the references given in the written outline of submissions being Ex 4 in the proceedings.

   [1] The decision was given on the 30th of May 2004.

   [2] The submissions in that regard were heard on the 11th June 2004.

2. The Crown conceded that if the references were accurate that it would be difficult to rebut the substance of the submissions made by the applicant.

   Nature of Charges in Particulars

3. It is convenient to attach to these Reasons the Sexual Offences Schedule provided by the Crown and altered in order to protect the identity of the complainants. For convenience the complainants will be “N” and “F” on the application.This application is made pursuant to s 590AA of the Criminal Code. The application to stay the indictment is based upon the proposition that by reason of the inherent injustice to the accused occasioned by the particulars being “so inadequate and misleading that the accused is denied the proper opportunity of preparing his defence”.[3]

   [3] Jago v District Court New South Wales (1989) 168 CLR 23 at 59.

   Principles to be applied

4. Fitzgerald P in R v R[4] stated:

   “In my opinion the adequacy of particulars cannot be divorced from the evidence which provides the context for the supposedly different details.”

   To be added to that principle is the compelling statement of Gleeson CJ:

   “It is simply not good enough for the prosecution to rely upon the totality of the transcript, observing that it contains contradictions and inconsistency. Nor, in the circumstance that the present case is good enough for the prosecution simply to point to various answers and to assert that they are untruthful … Proper particulars would involve formulating the substance of the false evidence which the witnesses allege to have given in the course of examination …”.5

   [4] C.A. No 445/1997, 6th of May 1998 unreported p3.

5. The applicant’s counsel contends that there needs to exist an “objective external factor event” and that that should be identified.6 It is contended that there is a distinct lack of objective facts or events or other means of identifying the occasions to which the counts relate. The defence has attempted to spell out the best particulars in relation to each count and for convenience set out the inadequate nature of each count in a document which was marked Exhibit 4. It evidences the confused state of the evidence.

6. To be added to the somewhat confused particulars, there were the submissions about police assisting with the recalling of the evidence by the use of photographs or visits made to the farm and reference to “the first time” or “school holidays”.

7. Dealing with the specifics, reference will be made in some detail to the arguments by the counsel for the applicant. Counsel for the Crown does not contest these references as being accurate.

   Counts 1 and 2

8. Reference is made to the “Christmas Holidays 1982”. This was according to the complainant N the first alleged incident of impropriety. In fact the complainant believed that the first alleged incident or event had occurred 12 months earlier that is in the Christmas holidays 1981 when she was three years and nine months old. The Christmas holidays 1982 emerged for the first time in her examination in chief. Reliance was made on certain photographs 4-6. Other photographs (5 and 6) were presented in cross-examination to N. She was unable to place them as the Christmas holidays 1981 or 1982. It may have been 1984.

9. It is clearly in breach of procedural fairness for the accused to have to meet various dates with the inherent inconsistency between same. Both Counts 1 and 2 suffer the same fate in this respect.

   Counts 3, 4 and 10

10. Counts 3 and 4 involving the complainant N occurred at the same time Counts 5 and 6 for A. N gives no evidence at all in relation to Counts 3 and 4 or if they even occurred. She has no recollection of same. Count 3 involves an allegation that the accused ejaculated on N’s face. N gave no evidence in either her statements or in evidence of any such event occurring. In relation to Count 4, a particular given is that the grandmother was at the door right after the incident. The grandmother is not available as a witness and the fact that this was these particulars, according to the defence, are not satisfactory for the purposes of meeting a case. Count 10 involves the grandmother also at the door. This is not referred to in N’s initial sworn statement. The particulars for Count 10 allege 1983 to 1984 as the time frame. The Crown alleged that this event occurred when the complainant N was six to seven years old and yet she would have been four at the commencement of 1983 and six years and nine months at the end of 1984. The complainant swears in evidence that she would have been four or five at the relevant time. There is in effect a four year time frame somewhere between March 1982 and March 1986 when N was four through to seven. The holiday at Ballaroo was an objective fact referred to to try to limit the period or the time when this event occurred. There is no evidence to say which years the family went to holiday at Ballaroo. This confirms the uncertainty of the particulars.

    Counts 7 and 8

11. This was supposed to be the first time that the complainant N performed oral sex on the accused. The evidence in the depositions at pp 210-219 and para 43 of the statement of 10 October 1991 do not support the particulars in Counts 7 and 8. The photographic evidence, the grade the complainant was in and her age are all somewhat confusing. The complainant does not say the count 7 incident occurred in “about grade 2” as particularised but rather in grade 2. She would have been seven years of age at that time and that would have been 1985. The depositions refer to her being in grade 2 and being aged five or six. Paragraph 43 of the complainant’s statement is used to support Count 8. No mention is made of the matters sworn to in that statement in respect of Count 7 which highly contradicts the version given at the committal. It was further confused by the addendum which was given the day before the committal. The events were alleged to have “occurred on the same day”.[7] The version also has “the first oral sex incident” occurring during the Christmas holidays of either 1981 and 1982. Also contrary to the version and particulars suggested and relied upon by the Crown it occurred allegedly in the toilet and bathroom.

    [7] See para 1 of the statement of 24 February 2003 and the statement of 10 October 2001.

12. The defence say that similar matters arise in relation to Count 8. The particulars relating to Count 8 say that N was five or six years in about 1984. The photographs 15 -17 were taken by her uncle. The Crown allege that this occurred after count 7 because count 7 refers to the first time oral sex occurred. It was suggested therefore that Count 8 must have occurred in or after grade 2 and yet the statement of 10 October 2001 uses a grade 1 photograph to support the recollection of the incident involving photographs 15-17. The evidence of the complainant suggests that it was not until when she was five or six years of age.[8] The complainant says that photographs 15-17 were taken during the holidays at Ballaroo which was in the summer of 1984. However paragraph 59 and 60 of the statement of October 2001 refers to the holiday at Ballaroo when her parents were on holiday in Fiji.[9] The person who took the photographs thought they occurred in the very early 80’s and before 1984. There are other discrepancies referred to by counsel for the applicant and which add to the confused state of events which may have occurred somewhere between 1981 and 1985 when the complainant was three through to seven years of age and when she was in grade 1 or grade 2.

    [8] p 216 depositions.

    [9] See also paragraph 5 of statement 24/2/03.

    Count 9

13. The appellant claim is from 1983 to 1984 which are the particulars provided. The expression, “the first bathroom incident” is meaningless as far as particulars are concerned: R v R per Fitzgerald P.

    Count 11

14. The submission by counsel for the applicant is that the particulars are repugnant as the offences alleged to have occurred some time in 1984 and 1985 when the complainant then was seven or eight and when her parents were in Fiji. There is some confusion as to whether her parents were in the United States or Fiji. The complainant says there was only one incident of ejaculation. There was an alleged event occurring when she was some “four to five years of age” that is 1982 to 1983. However the particulars say it was 1984 or 1985. It was also the time when she says her grandmother observed the incident which the Crown particularises in 1983/1984. In cross-examination the complainant believed ultimately that the Fiji holiday was 1986. The presentation of the particulars in this respect seems to be manifestly unjust to the accused.

    Count 12

15. For reasons stated in relation to Count 11, Count 12 is also tainted. It seems that it was the same holidays in 1985 at Ballaroo.[10]

    Counts 5 and 6 - Complainant A

16. These were alleged to have occurred at the same time as Counts 3 and 4 relating to the complainant N. So there is one complainant who swears there was only one occasion where the accused ejaculated on or near her and that she was the only one present. The complainant A says that he was there when the accused ejaculated on the N’s face. A says the incident occurred in 1982 and 1983. The accused is alleged to have ejaculated over both of his sisters. None of the sisters can swear to that fact. He also swears that he was present during the vaginal intercourse of both sisters. Neither person gives evidence about that incident. The complainant believes it occurred when he was nine or ten years of age. Later on he agreed it may have been when he was eight or nine.[11] Then he accepted it may have been in 1982. Later he recanted that answer. The complainant A offers no objective fact by which any holiday in its three year timeframe relates to alleged offences with which he is concerned.

    [10] Depositions p333. [11] Depositions p 392.

17. When one applies the principles previously referred to,[12] it is clear that this case falls within the category of cases where proper particulars cannot be given. Where proper particulars cannot be given:

    “the accused is effectively denied the opportunity to test the credit of the complainant by reference to surrounding circumstances such as will exist if the acts charged had been identified in relation to some more precise time or by reference to some other event or surrounding circumstance”.[13]

    Further in R v R:

    “Particulars must allow an accused, who is presumed to be innocent, to identify the occasion to which a count relates. Details which assume guilt do not perform that function. It does not assist an accused person who denies guilt to be informed that a count relates to the first occasion when he or she allegedly committed an offence of the nature stated in the count; he or she denies that such an offence ever occurred.

    The position is unchanged by adding contentious circumstances, such as the room in which an alleged offence occurred and/or that it occurred during the day or night when the accused cannot identify the occasion because the circumstances again assume the guilt which he or she denies.

    Further, circumstances might be so commonplace as to fail entirely to provide any useful distinguishing information. In my opinion, the adequacy of particulars cannot be divorced from the evidence which provides the context for the supposedly differentiating details.”[14]

    [12] R v R and Stanton v Abernathy op cit.

    [13] S v R (1989) 168 CLR 266 at 286 Per Gaudron McHugh JJ.

    [14] R v R per Fitzgeral P. p3

18. In my view, the accused has been denied a proper opportunity of preparing his defence as inadequate and misleading particulars were able to be given in the present case. In that event it is ordered that the indictment be permanently stayed.

Order

1.The indictment is permanently stayed.