R v Gray No. Sccrm-97-289 Judgment No. S6431

[1997] SASC 6431

R v BRIAN PAUL GRAY

Bollen J

The accused in this matter stands charged with the alleged crime of unlawful sexual intercourse with a person under 12.  The particulars of the offence are that in about September 1987, at Mount Barker, he had unlawful sexual intercourse with the girl concerned, who was a person of eight years of age, by inserting his finger in her vagina.  That was in 1987.
I refer, as I go along now, to the change in the law in relation to corroboration that has occurred in the interim.
         The accused was at a place where there were a great many other people.  It was said that a witness, whose Christian name is Jessica, was present when the alleged intercourse occurred.  That witness is now 10 years older. She was a young girl at the time.  It has turned out that she now would say, if called, as far as one can judge, that she saw nothing like that which is alleged by the victim happen at the relevant time, way back in 1987.
The allegation of the commission of this offence was first raised on 13 December 1995, at which time the girl concerned made a statement to the police.  Things moved very slowly thereafter.  The accused was spoken to on 10 April 1996.  Eventually appeared before a magistrate in the Magistrates’  court in May 1997.
The application now made is that there be a permanent stay of proceedings.
Mrs Shaw has appeared for the applicant and advanced reasons why that order should be made.  Mr Barnett has appeared for the Director and has opposed it.  If I may, I congratulate counsel on the high quality of their submissions. These submissions demonstrate that it is possible to make powerful and valuable submissions in a short time, without any diminution of their value.  I am much indebted to both counsel.
The principles on which a stay, in circumstances like this, should be granted are laid down in Jago v District Court (NSW) (1989) 168 CLR. Those principles have been adopted by other courts since and applied to the particular circumstances before those other courts. Particularly valuable are the case of Davis (1995) 81 ACrimR 156, a decision of the Full Court of the Federal Court of Australia, and a decision of Higgins J in the Supreme Court of Australian Capital Territory and a most valuable judgment, in Aitchison v DPP (1997) 90 ACrimR 448, at p.448. I need not stay to record other cases.
There has been a great delay in this matter.  There have been longer delays in some of the other cases.  But this delay between September 1987 and speaking to the police to the accused in April 1996 and now to the trial,  has been a delay of ten and a half years or thereabouts.
The delay is a significant feature. But one must realise it is not the only matter for consideration.
In Jago's case, at p.33, Mason CJ said:
"The test of fairness which must be applied involves a balancing process and the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial.  At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged.  The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case, but they will generally include such matters as the length of delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused.  In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of the delay alone will accordingly be very rare."
I stop quoting and say that the delay in this case is such and so long that this must come very close to being a case in which delay itself would demand that one order a permanent stay.
Mason CJ goes on:
"To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial of such a nature that nothing that the trial judge can do in the conduct of the trial can relieve against its unfair consequences."
I regard that as the most significant passage in the judgments to which I have referred.
So we have the long delay as at least a background to the application for a permanent stay.  There is no good reason for the long delay.  It was brought about by the expected prosecutrix not reporting it until many years after the time when it was said to have happened.  I do not think that I should hold that there has been any prosecutorial delay. It has been a little slow, but no great delay.
One has to look to see whether there is the risk of incurable unfairness if the trial proceeds.  One has to consider oppression.  The applicant was very young at the time. Since the events occurred, he has qualified as a teacher, married and established himself with a family.  He has established himself as a valuable and industrious member of society.
In 1989, allegations were made against him by other girls, including the supposed witness to the subject charge of sexual misconduct.  The accused promptly admitted it. Meetings with those concerned took place.  Counselling was decided upon.  A course in counselling was carried out successfully.  So that if we speak in quasi medical terms, the accused was cured.  That was all behind him.  Then comes, in April 1996, the devastating allegations referred to by the police when they spoke with him.  His life stood in great danger of being disrupted.
The alleged unlawful sexual intercourse occurred at a place where a great many people were living in various, shall I say, apartments.  As I have mentioned, it is said to have been witnessed by a witness who now disclaims any recollection of it.  The girl concerned spoke of the layout of the accused's room, of the nature of the clothing that he was wearing and, the dress of others.  In addition, she says that they had been watching videos.  A video had been hired, she says, by the accused.  That was called `The Last Unicorn'.
She says that when she was attacked, she fought back and scratched, and scratched substantially, the face of the accused. We know that in sexual cases, it is often important for doctors to examine any sort of scratch marks that may have been inflicted on a person who was attacking a girl. Examination of the skin or tissue under the fingernails of the girl often takes place.  Altogether, if there is a charge of this sort, prompt attention to detail and examination of prosecutrix and accused person is essential. All that cannot be carried out now.  The lapse of time prevents it.
The lapse of time most significantly prevents the accused from checking to see if he can establish an alibi. He has lost the chance to explore the possibility of alibi. That is something that would need to be carried out promptly. He has lost the chance of having a doctor or other people look at his face to say that they see no sign of any scratching.  There can be no examination of the fingernails of the girl.
The layout of the room is, of course, entirely different now.  The place, I am told, has passed into different ownership.
I, as I say, congratulate both counsel on the submissions and arguments which they put forward, but I am left in the end in no doubt that I should grant a permanent stay of these proceedings for the reasons advanced by Mrs Shaw. I particularly emphasise the matters I have just spoken of which the accused is prevented from following up.
If I balance the question of probable incurable unfairness against community entitlement to expect people committing crimes to be tried, but tried within a reasonable time, I think the scales come down substantially in favour of the granting of the stay of proceedings.
For these reasons which I have expressed now in such fashion rather than take time to put them into better language, I grant the permanent stay of proceedings.  As I say, if I took time to put the remarks into more felicitous language, it would delay matters.  I have a clear impression of what I should do and I announce it now.  I make the order granting the permanent stay of proceedings in relation to the charge of unlawful sexual intercourse with a person under twelve said to have happened in September 1987 against the accused person who is discharged.