R v Ferguson

[2008] QDC 136

[2008] QDC 136

DISTRICT COURT
CRIMINAL JURISDICTION

JUDGE BOTTING

THE QUEEN
v.

DENNIS RAYMOND FERGUSON

BRISBANE

..DATE 01/07/2008

ORDER indictment with three separate offences. As I shall shortly explain, one of those has been resolved, but two remain. This is an application for an order that these proceedings be permanently stayed. 1

10

A like application was made and dismissed by his Honour Judge
Forno last year. In those circumstances, I should not
reconsider the matter unless I'm satisfied that there are
special reasons for so doing. See subsection (4) of section

590AA of the Criminal Code.	20
Counsel for the applicant/accused submitted that circumstances
have changed since his Honour made his ruling in that: (1)
the Crown case can now be demonstrated to be weak; and (2)
there has been further adverse publicity concerning the	30
applicant.
Counsel for the respondent/Crown accepted that there were
material changes in the circumstances considered by his Honour
and that I might give leave.	40
In the circumstances, it seems to me that it is appropriate that I order, and I do order, that the accused have leave to reopen the ruling.
50
So far as the general history of the matter is concerned, I think I can be relatively brief.
The accused has a long history of committing criminal

2 ORDER 60

offences. Included in that history are many involving sexual	1
offences against young children.
On the 28th of June 1988, he was convicted in the Supreme Court of numerous sexual offences involving children and was ordered to be imprisoned for 14 years. He was not released from prison until 2003.	10
On the 10th of November 2005 the accused was arrested and charged with the present offences. As I understand it, he has been in custody since his arrest. That is a period of 2.64 years.	20
The trial commenced before his Honour Judge Martin on the 31st of March this year. Only two of the three counts were before the jury. The two charges were: (1) indecent treatment on the 9th November 2005 of a child whom I will refer to as K; and (2) indecent treatment on the 9th of November 2005 of a child whom I'll refer to as B.	30
40
The Crown case concluded on the 2nd April 2008. His Honour ruled that there was no evidence in respect of the second count and the accused was discharged on that after the Crown Prosecutor entered a nolle prosequi.
50

His Honour intimated to the learned Crown Prosecutor that the Crown should take a certain course in respect of the first count. The Crown did not accept that intimation. On the accused's counsel's application, the jury was then discharged in respect of count 2, and the matter is due to commence before me next week. 3 ORDER 60

1

The application before me today is brought on the basis that a
stay should be granted because of, firstly, the considerable

adverse pre-trial publicity and, secondly, the weakness of the	10
Crown case.
So far as pre-trial publicity is concerned, I'm entirely
satisfied that there have been many references to the accused
printed in newspapers having wide circulation throughout this	20
State.
Equally, I accept that there has been a significant reporting
of matters relating to the accused on programs broadcast by
local television stations.	30
It is also clear from the evidence before me that there are many references to the accused to be found on the Internet.
The references to the accused have a long history, but for the	40
purposes of this ruling I am considering the "debate", if such
it can be called, which commenced prior to the accused's
release from prison in 2003, and which has continued to this
day.
50

These references are of various kinds. They include
widespread reporting of:
(a) the fact of his numerous convictions of and imprisonment
for sexual offences committed against children; 4 ORDER 60

(i) Ministers of the Crown; (ii) Federal politicians; (iii)	20
State politicians; (iv) City Councillors, and by others who
might perhaps be described in the language of Mr Justice
Brennan in Glendon, page 611, as: "Persons who affect to
convey the moral conscience of the community and to possess
information, insights and expertise in exceptional measure."	30
In those references, the accused has been referred to as,
inter alia: (a) "well known paedophile"; (b) "notorious
paedophile" (c) "unrepentant"; (d) "considered
unrehabilitated"; and (e) "convicted child molester".	40
There are reports in the press, including television coverage,
which I can recall, of citizens who lived in close proximity
to his residence after his release from prison and of their
being outraged by the fact that he was living close to them.	50
Ipswich, Murgon and Roma after angry demonstrations by some.

1

(b) unattributed reports of his expressing an intention to

have sex with children upon his release from prison;

10

(c) expressions of opinion - usually to the effect that the
accused should not be at large in the community, or would
constitute a real risk to children if allowed at large in the
community. Such opinions have been reportedly expressed by:

There are reports of his being "forced" to leave residences at being "hounded", of residents being "in uproar", and of their "picketing" his residence. There are references to an "angry mob". 5 ORDER 60

1

debate as to whether it was appropriate for someone with his	10
history and alleged unrepentant attitude to be released at all. The issue was alive during a state election campaign.
In all the material before me there is nothing I can find that
in any way might be thought to be favourable to the accused.	20
The most that can be said is that there are some references to
expressions of opinion by some (referred to occasionally as
"civil libertarians") that people who have served sentences
should not be further constrained; and there is a report of
the then Premier of the State urging people to "keep calm".	30
My conclusions in respect of that pre-trial publicity.
In my view, the nature and extent of the pre-trial publicity
render it, to all intents and purposes, impossible to conceive	40
that a jury could be empanelled to try the matter, whose members would not be familiar with the things about the accused which have featured for so long and so often in the press.
50
Allegations of the sexual abuse of very young children excite very strong emotions in our society. One sees almost week by week in this Court the extent of the intense abhorrence and

At the time of his release from prison, there was a lot of

anger which evidence of such abuse causes. convinced that most jurors accept their duties responsibly, try to follow judicial directions faithfully, and often will struggle hard to be entirely objective in their assessment of the evidence.	6	ORDER	60
10

It seems to me, however, in the circumstances of this case, impossible to conceive that a jury could be empanelled, all of whose members would be able to bring the dispassionate judgment which the law requires to a consideration of the evidence.	20
My judgment is, therefore, that the accused cannot have a "fair" trial in respect of this charge because I think it improbable that a jury can be empanelled, all of whom would be	30
able to be dispassionate and follow the judge's directions. To pretend otherwise would, I think, be disingenuous.
So far as the law is concerned relating to these issues I am
40
grateful to counsel for their research and submissions. I
will refer to some of the cases to which they have referred
me.
At the end of the day, both counsel agree that a permanent stay will only be granted in exceptional cases.	50

The starting place for a discussion of the law relevant to this application would seem to be the decision of the High Court in Jago v. The District Court of New South Wales and others (1989) 168 CLR 23. The appeal was from an order of the 7 ORDER 60

1

trial judge dismissing an application for a stay based on what was said to be unreasonable delay by the Crown in bringing the matter to trial.

10

Chief Justice Mason said that that case raised two questions: (a) whether the common law of Australia recognises a right to a speedy trial separate from and additional to the right to a fair trial; and (b) whether the applicant's right to a fair

trial had been prejudiced by undue delay amounting to an abuse	20
of process.
His Honour held that there was, in Australian Courts, an inherent power to stay proceedings which are an abuse of process, and power to "supervise proceedings brought in its	30
jurisdiction", which power includes, "power to take
appropriate action to prevent injustice". See page 25. He
observed that the High Court had not yet decided whether the
power to prevent abuses of process extended to a "power to
prevent unfairness generally", although he observed that lower	40
Courts have not found difficulty with such an approach. See page 26 of the report.
His Honour reviewed a number of authorities, particularly
Connelly v. The Director of Public Prosecutions (1964) AC	50
1254, Regina v. Humphrys (1977) AC 1, Rourke v. The Queen
(1978) 1 SCR 1021 - that's a Canadian decision, of course -
and Moevao v. Department of Labour (1980) 1 NZLR 464.

8 ORDER 60

His Honour quoted from the decision of Justice Richardson in	1
the latter case:
guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike, and the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction, the
"It is not the purpose of the criminal law to punish the in the future as in the case before it. This leads to the second aspect of the public interest, which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice."	10
20
30
40
He went on to observe at page 30:
"In essence, then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and the processes preceding them are conducted fairly, and, secondly, that so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In this sense, fairness to the accused is not the sole criterion when a Court decides whether a criminal trial should proceed."	50

9 ORDER 60

1

His Honour concluded this part of his judgment as follows:

"The continuation of processes which will culminate in an	10
unfair trial can be seen as a 'misuse of the Court's process' which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial.
20
Ultimately, it does not matter whether the problem is resolved
in this way by invoking a wide interpretation of the concept
of abuse of process, or by saying that Courts possess an
inherent power to prevent their processes being used in a
manner which gives rise to injustice. In either event, the	30
power is discretionary, to be exercised in a principled way,
and the same considerations will govern its exercise. And in
each case, the power will be used only in most exceptional
circumstances to order that a criminal prosecution be stayed.
If the distinction matters, I would prefer to regard the power	40
as an incident of the general power of a Court of justice to ensure fairness."
Mr Justice Brennan, as his Honour then was, held that there
was no right to a speedy trial recognised by the common law.	50
He went on to consider the more general issue of trying to
ensure a fair trial. His Honour said - I am quoting from page 47:

10 ORDER 60

"Obstacles in the way of a fair trial are often encountered in	1
reporting of notorious crimes (see Murphy v. The Queen), adverse revelations in a public inquiry (see Victoria v.
administering criminal justice. Adverse publicity in the Labourers' Federation), absence of competent representation (McInnes v. The Queen, MacPherson v. The Queen), or the death or unavailability of a witness may present obstacles to a fair trial, but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the Court's control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party, but particularly to the accused, is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and especially by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.	10
20
30
40
More radical remedies may be needed to prevent an abuse of process. An abuse of process occurs when the process of the Court is put in motion for a purpose which, in the eyes of the law, it is not intended to serve, or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process."	50

11 ORDER 60

His Honour then went on to discuss his perception that the	10
Courts in some states - New South Wales in particular - had not drawn a proper distinction between an obstacle to a fair trial and an abuse of process. In an oft-quoted passage he observed:
20
"By the flexible use of the power to control procedure and by
the giving of forthright directions to a jury, a judge can
eliminate or virtually eliminate unfairness. The judge's
responsibilities are heavy, but they are not discharged by
abdication of the Court's duty to try the case. If it be said	30
that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law, and whether
the legal right of an accused truly stated is a right to a
trial as fair as the Courts can make it. Were it otherwise,	40
trials would be prevented and convictions would be set aside
when circumstances outside judicial control impair absolute
fairness. To take an obvious example, the administration of
the criminal law in notorious cases could be brought to a halt
by adverse media publicity. To admit a power to stay a case	50
undervalue the efficacy of the orders, rulings and directions of a trial judge in removing unfairness to an accused caused by delay or other misconduct by the prosecution.

1

permanently for delay causing prejudice seems wrongly to adversary method, in both the criminal and civil jurisdiction, interests other than those of the litigants are involved in litigation, especially criminal litigation. The community has an immediate interest in the administration of criminal justice to guarantee peace and order in society. The victims of crime, who are not ordinarily parties to prosecutions on indictment and whose interests have generally gone unacknowledged until recent times, must be able to see that justice is done if they are not to be driven to self-help to rectify their grievances. If a power to grant a permanent stay were to be exercised whenever a judge came to the conclusion that prejudice might or would be suffered by an accused because of delay in the prosecution, delay in law enforcement would defeat the enforcement of the law absolutely, and prejudice resulting from delay would become a not unwelcome passport to immunity from prosecution. Refusal by a Court to try a criminal case does not undo the anxiety and disability which the pendency of criminal charge produces, but it leaves the accused with an unremovable cloud of suspicion over his head, and it is likely to engender a festering sense of injustice on the part of the community and the victim. The reasons for granting stay orders, which are as good as certificates of immunity, would be difficult of explanation, for they would be largely discretionary. If permanent stay orders were to become commonplace, it would not be long before Courts would forfeit public confidence. The granting of orders for permanent stays would inspire cynicism if not suspicion in the public mind."	12	ORDER	60
10
20
30
40
50
13	ORDER	60

1

Mr Justice Deane observed that there was no directly
enforceable right to a fair trial. He said that what was
involved was more accurately expressed as "a right not to be

tried unfairly". He went on to say - and I'm quoting from	10
page 57:
"It is, however, possible to formulate examples of cases in
which the effect of default or impropriety on the part of the
prosecution would necessarily be that any subsequent trial was	20
unfair to the accused. Thus, one can envisage circumstances
in which calculated and unreasonable delay on the part of the
prosecution in bringing proceedings to trial had so unfairly
and permanently prejudiced the ability of an accused to defend
himself that no subsequent trial could be a fair one.	30
An unfair trial is not a nullity. An acquittal after such a
trial is ordinarily final and decisive. So, unless it is impeached on an appeal, is a conviction. Nonetheless, an unfair trial represents a miscarriage of the curial process.	40
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.	50
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 processes possesses jurisdiction, at the suit of

14 ORDER 60

the accused, to stay the proceedings pursuant to that power.	1
The grant of such a stay in those circumstances does not mean that the judge is either stepping into the arena or assuming what is properly to be seen as a function of the executive government. It involves no more than the discharge of the responsibility and duty of a Court to see that the process of law is not abused in proceedings before it."	10
Toohey J discussed at some length submissions founded on the assertion that Magna Carta provided the citizen with a right to a speedy trial. His Honour emphasised the distinction between the asserted right to a speedy trial and the right to a fair trial. He observed that there may be cases where the delay has been so great and the consequent prejudice to an accused so manifest that directions cannot ensure a fair trial, and that in such circumstances a stay will be the only remedy which will meet the situation.	20
30
Gaudron J observed that a trial judge, by reason of the duty to ensure the fairness of a trial, has a number of discretionary powers which "will often suffice to remedy any feature of the proceedings which might otherwise render them unjust or unfair." She went on to say:	40
"The existence and availability of these powers when
50
considered in the light of the necessarily limited scope of
the power to grant a permanent stay, serve to indicate that a
court should have regard to the existence of all its various
powers, and should only grant a stay if satisfied that no

15 ORDER 60

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other means is available to remedy the feature which, if	1
unremedied, would render the proceedings so seriously defective, whether by reasons of unfairness, injustice or otherwise, as to demand the grant of a permanent stay."

10

One should not lose sight of the fact that Jago was concerned with lengthy delay, but not with delay that was demonstrated to have caused actual prejudice to the accused.

The clear import of all the decisions is that the criminal courts should use the various well known discretionary and other tools to ensure that a trial is as fair as it can	20
reasonably be made to be. Those judges in Jago who contemplate the use of a power to grant a permanent stay clearly only envisage its use when the other devices will be ineffectual.	30
R v Glennon (1992 173 CLR 592) was a case in which a priest
was convicted of a number of sexual offences against children.
There was extensive pre-trial publicity which included
40
references to his having been earlier convicted of like
offences. A person had been convicted in contempt
proceedings, and his trial, his appeals, and the fact of his imprisonment occasioned much publicity. The Court of Appeal allowed Glennon's appeal on the grounds that the verdicts were
50
unsafe and unsatisfactory because there was a substantial risk
that some members of the jury had become aware of the

accused's prior conviction. By a majority (Mason CJ, Brennan, Dawson and Toohey JJ; Deane, Gaudron and McHugh JJ dissenting) 01072008 D.1 T(2)02/KAS(BNE) M/T CT28 (Botting DCJ) 16 ORDER 60

The High Court allowed the Crown's appeal.	1
Essentially, as I read the judgments in the High Court, the matter was decided by the majority on the basis that the Court of Appeal had erred in setting aside the discretionary decision of the trial judge.	10
Mason CJ and Toohey J in their joint judgment said:
offence stands in a different position from other prejudicial information. Reception of inadmissible evidence of a prior conviction has been said to offend against one of the most deeply rooted and jealously guarded principles of our Criminal
"Knowledge of an admissible prior conviction for a similar evidence by or to the jury is calculated to set the prospect of a fair trial at risk. It is then for the trial judge to decide whether it is necessary to discharge the jury in the interests of securing a fair trial (30) and, if the trial proceeds and results in a conviction, for a Court of Criminal Appeal to decide whether the accused has been deprived of a fair trial. But it is important to distinguish between cases in which the jury are made aware of a prior conviction during the course of a trial and cases in which such awareness is not established.	20
30
40
50
As McGarvie J acknowledged, '[T]here is not an absolute
insistence by the law that the jury have no knowledge of a
prior conviction of an accused on trial.' His Honour went on

17 ORDER 60

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to conclude that this case was exceptional because the prior	1
conviction was for an offence of the same nature as the offences charged. However, this conclusion is not to the point in the absence of a legitimate finding that there was a likelihood of awareness of a conviction or at least a substantial risk of awareness."	10
Their Honours then dealt with the power to grant a permanent stay and referred to Jago. At page 605 they said:
20
"On the other hand, a permanent stay will only be ordered in an extreme case (33) and there must be 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.' (34) The Court of Criminal Appeal, before it would set aside a conviction on the ground of miscarriage of justice, requires to be satisfied that there is a serious risk that the pre-trial publicity has deprived the accused of a fair trial. It will determine that question in the light of the evidence as it stands at the time of the trial and in the light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trial."	30
40
The dissenting judges also were clearly of the view that a permanent stay might be granted in appropriate cases. At page 623 they said:	50
"The central prescript of our Criminal Law that no person

18 ORDER 60

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shall be convicted of a crime otherwise than after a fair	1
trial according to law dictates that an accused is entitled to be protected from an unacceptable and significant risk that the effect of prejudicial pre-trial publicity will preclude a fair trial. Ordinarily, that risk will be obviated by appropriate and thorough directions and, if the circumstances also require it, a temporary stay for the minimum period adjudged necessary for the pre-trial publicity to abate. The balancing of the legitimate interests of the accused and the prosecution will, in almost every case, mean that if the proceedings are to be stayed at all, they should only be stayed temporarily and for the minimum period necessary. Nonetheless, one cannot exclude, as a matter of law, the possibility that an 'extreme' or 'singular' case might arise in which the effect of a sustained media campaign of vilification and prejudgment is such that, notwithstanding lapse of time and careful and thorough directions of a trial judge, any conviction will be unsafe and unsatisfactory by reason of a significant and unacceptable likelihood that it would be vitiated by impermissible prejudice and prejudgment. In such a case, a permanent stay may be granted. If it is not, a subsequent conviction will necessarily constitute a miscarriage of justice. Accordingly, it must be set aside on appeal, and, if there is no other power to bring the proceedings to finality, a verdict of acquittal must be entered. The judgments of the majority of the Court of Criminal Appeal made clear that their Honours concluded, as a matter of fact, that this was such an extraordinary, extreme or singular case with the consequences indicated." 01072008 D.1 T(2)02/KAS(BNE) M/T CT28 (Botting DCJ)	10
20
30
40
50

19 ORDER 60

1

R v Lewis (1994 1 Qd R 613) was a case in which a former Commissioner of Police was convicted of corruptly agreeing to receive property. His trial followed a lengthy public inquiry which attracted considerable interest and much comment in the community. He had not, of course, been previously convicted, but much of the comment at the time focused on allegations that the accused had for a long time acted in a corrupt way.	10
At the commencement of the trial the accused's counsel sought to question prospective jurors with a view to ascertaining whether a prospective juror could be said to be "indifferent as between the Crown and the accused person." The trial judge refused the application and also a further application for a stay.	20
30
by no means all adverse" although "the bulk of the publicity was, however, undeniably adverse to the appellant."
Pincus JA pointed out at page 632 that "the publicity was trial judge's decision. He observed at page 636:	40
"The High Court's remarks support the view that, at least in
some circumstances, an accused must be content with a trial in
which the court does the best it can for him by way of
50
directions, without producing any certainty that
preconceptions deprived from media treatment of the facts of
the case will be utterly dispelled by the time the jury comes
to consider its verdict. Were that not so, then it might be

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impossible lawfully try a person such as Jack Ruby, whose	1
crime was witnessed by millions on television. It may be that if adverse publicity is deliberately generated by persons for whom the Crown should properly be held responsible, then justice would require that a permanent stay be granted; otherwise, it's not easy to imagine circumstances in which publicity before or during a trial could entirely prevent the pursuit and eventual completion of a prosecution..."	10
R v Johannsen and Chambers (1996 87 A Crim R 126) was a case in which a trial judge refused an application for a stay based on the prosecution's delay in charging the accused. Appeal to the Court of Appeal from this decision was made, and in the time after the hearing of the appeal and the court's giving its decision one of the appellants (against whom the Crown's case was strongest) died.	20
30
By a majority the appeal was allowed. Fitzgerald P pointed out that there is a strong public interest in the prosecution of serious offences, but there is "a superior interest in ensuring that judicial processes are not abused, that accused persons's trials are fair to them...that innocent persons are not convicted and that public confidence in the administration of justice is maintained." See page 131. He later said:	40
50
"Nonetheless, regard to a number of modern cases has left me
in some doubt concerning whether this is such an 'exceptional
or extreme' case as to warrant a stay; there is a strong
predisposition towards permitting prosecutions to proceed with

21 ORDER 60

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procedural and other rulings and directions moulded to achieve	1
a fair trial which produces a result free of the taint of risk of miscarriage of justice... A stay should not be granted if the prosecution can proceed uninfluenced by improper purpose, without unfairness to the accused, with a legitimate prospect of success and, in the event of conviction, no significant risk that, because of delay or other fault on the part of the Prosecution, an innocent person will have been convicted."	10
R v Noyes (2005 1 Qd R 169) was another case involving an appeal from the refusal of a trial judge to order a stay. Holmes J (as her Honour then was) in a judgment with which the	20
other members of the court agreed, held that "in determining whether the continuation of a prosecution was an abuse of process it was relevant to consider whether the prosecution had a real prospect of success."	30
These cases establish that there is a power in the court to order a permanent stay of a criminal proceeding. That power should only be exercised in exceptional circumstances. It should only be exercised if a trial judge is satisfied that none of the other devices in the judicial weaponry will ensure a trial which is as fair as it is reasonably possible to achieve for the accused.	40
50

In considering whether to grant a stay I must bear in mind, it
seems to me, the various public interests which are involved
and which have been touched upon in the cases I have referred
to above.
01072008 D.1 T(2)02/KAS(BNE) M/T CT28 (Botting DCJ) 22 ORDER 60

The only evidence which directly implicates the accused in the commission of an offence against K on the 9th of November, 2005 is the evidence of K. This is comprised of what she said in an interview with a Police Officer, Hayes, that interview having been recorded and tendered in the now familiar way, and her prerecorded evidence given before this court on the 1st of November, 2007.	10
20
I was told that K was born on the 2nd of May 2000. She was thus about five and a half years old when the offence is alleged to have been committed.
30
There must be serious concern about the reliability of K's evidence. Counsel for the applicant has set out in detail in his written submissions a number of the matters which give rise to concern. I have had regard to them all, but will only refer to some here.	40
During the interview the child alleges that the accused did "something to me right here in my little bum" and points to her waist. She alleges (contrary to the Crown case) that she
50

1

This leads to a consideration of the strength of the Crown case.

was in a room with a bed and a cot when she was dealt with. later says that she was touched whilst being read to. She does not clarify, as it seems to me, how she was touched. 01072008 D.1 T(2)02/KAS(BNE) M/T CT28 (Botting DCJ) 23 ORDER 60

1

K was not able in any satisfactory way to identify the accused when shown a photoboard containing his photograph along with others.

10

Another Crown witness was present at the time. His name is offences involving children.

K's evidence in this court is concerning. Whilst she clearly alleges that the accused touched her, she equally clearly identifies the person who touched her as the other man that was present. This is the relevant part of her evidence:	20
"BY COUNSEL: See, K, I've spoken to Dennis and he tells me he didn't touch you as you've told us; what do you say about that?-- Umm, well - well, B was with Dennis and I was with Dennis' friend.	30
HER HONOUR: Now, just-----
40
MR SMITH: So-----
WITNESS: And I was with his friend.
50
HER HONOUR: The question that was put to you, K, is this: Mr
- Mr Smith said to you that Dennis told him that he didn't
touch you?-- Well, B was-----

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Did - did he touch you-----?-- -----B was-----	1
Sorry. Did he touch you-----?-- Well, B - well, B was with Dennis and I was - and I was with his friend.

10

Did Dennis touch you?-- No, his friend did."

Counsel for the Crown then re-examined K. In what appears to be arguably cross-examination he secures from K an affirmative answer to the question, "Did Dennis touch you?"

20

I have watched the recording of the child's evidence. In my view it cannot be said that the child was in any way overborne when she gave the evidence that I have just referred to. As will be observed, the trial judge intervened not, as I perceive it, because of any concern that the child was overborne, but rather to be confident that the child was understanding what was being asked of her.	30
I do not think it necessary to discuss the other submissions made to me in respect to the tenuous nature of the Crown case.	40
Clearly there is some evidence which might support a conviction.
50
In my view the Crown case is tenuous.
I am somewhat fortified in coming to this opinion by the
knowledge that my view was clearly one held by the trial judge

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who had the opportunity of seeing all the witnesses. However,	1
I must emphasise, of course, that the view I have formed is my own view.
I cannot see any rational basis on which a jury could disregard the child's evidence which I have quoted above. At the very least it must create a doubt as to the child's reliability. There are many other concerning aspects of the Crown case.	10
20
In my view the application for a stay should be granted. I have been mindful of the criteria which I have referred to above, and in particular that it is only in the most exceptional cases that a permanent stay should be granted. Bearing in mind the extraordinary nature of the public comment in this case, the fact that it is virtually entirely adverse to the accused, that it varies between rational statements and vitriolic attacks, that the press publicity has been compounded by film shown on television, and that the Crown case is so very weak, I have formed the view that the accused cannot receive a fair trial and that were the trial to proceed there would be a real prospect of a miscarriage of justice.	30
40
The above is sufficient to dispose of this matter. I should however mention two other matters which concern me.
50
The "evidence-in-chief" of K is the videotape recording of her interview with a police officer. There are, in my view, grave difficulties with that recording (which I have watched).

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01072008 D.1 T(2)02/KAS(BNE) M/T CT28 (Botting DCJ)

There are significant parts of it during which I simply cannot	1
understand what the child is saying. From the context, many of the indistinct passages appear to me to be potentially critical to the case. We all know that the jury must be told that it is what they hear the child say that constitutes the evidence. If we cannot understand the child, how can we be confident what her evidence is? What happens if some jurors think that the child is saying one thing and others another, and others do not know what the child is saying?	10
20
The other matter which I should mention is that, as I understand it, the accused has been in custody since his arrest in November 2005. As I have already mentioned, that is a little over 2.6 years.
30
At its best, as I understand the Crown case, the dealing here alleged against the accused is his touching the child in the area of her vagina but outside her clothes. In other words, it is not alleged that there was skin to skin contact. The dealing must have been of short duration.
40
In most cases a person convicted of such an offence would be ordered to be imprisoned, but for a relatively short period. The accused has of course an appalling criminal history, which
would suggest that any punishment imposed would be at the
50
higher end of the appropriate range for the offence. Even so,
I think there is force in the accused's counsel's submission
that the time already spent in custody by the accused would
exceed an order (even after trial) of imprisonment on

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01072008 D.1 T(2)02/KAS(BNE) M/T CT28 (Botting DCJ)

conviction.	1
The observations I have just made, however, of course must be tempered by the probability, one would think, of the Crown's applying for an indefinite sentence.

10

Counsel for the applicant did make a further submission that the stay should be granted relying upon what he argued was an improper approach by the Crown to the prosecution of this case. In the circumstances, it's not necessary for me to deal with such a submission.	20
All I have said thus far focuses, of course, on the count which was left alive after the trial before his Honour Judge Martin, that is Count 1 on the indictment. It will be remembered that there is another count, Count 3. Learned Crown counsel has informed me, as I understand it, and I invite correction if I have misunderstood it, that in the event that I take the view that Count 1 should be permanently stayed a like order should be made in respect of Count 3. That is the course I propose to follow. The order I make, therefore, is that Counts 1 and 3 on the indictment be permanently stayed.	30
40

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50

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