R v H, GJ - [2014] SASCFC 34

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Case Stated)
R v H, GJ
[2014] SASCFC 34
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Bampton)
10 April 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - CASE STATED AND RESERVATION OF QUESTION OF LAW
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
Following the refusal of a stay of proceedings application, an application was made to the Full Court for an order requiring the District Court to refer certain questions to it for consideration and determination pursuant to s 350(5) of the Criminal Law Consolidation Act 1935 (SA). The applicant was awaiting trial in the District Court at the time of making this application.
Held (the Court):
It is important that the criminal trial process is not fragmented. This principle weighs heavily against referring a question on an issue antecedent to trial to this Court. It is also as important to the community, as it is to an accused, that allegations are resolved in open court so that evidence on which an offender is either convicted or acquitted is a manner of public record (at [27]).
The District Court Judge provided extensive reasons which, on their face, correctly refer to applicable legal principles and relate those principles to the applicant’s particular circumstances. These reasons do not appear to suffer any gross error (at [28]).
The application to require the District Court to refer the questions of the correctness of the Judge’s ruling to this Court is dismissed (at [29]).
Criminal Law Consolidation Act 1935 (SA) s 50, s 56, s 348, s 350, s 353, referred to.
Jago v District Court (NSW) (1989) 168 CLR 23, discussed.
Hoch v The Queen (1988) 165 CLR 292; R v H,GJ [2014] SADC 20, considered.

R v H, GJ
[2014] SASCFC 34
Court of Criminal Appeal: Kourakis CJ, Vanstone and Bampton JJ

THE COURT: The applicant, GJH, applied to the Full Court of this Court for an order requiring the District Court to refer certain questions to it for consideration and determination pursuant to s 350(5) of the Criminal Law Consolidation Act 1935 (SA) (the Act). The application was heard on 21 February 2014, on which day the Court dismissed the application. We now publish our reasons.
The History of the Prosecution
At the time of making his application, the applicant was awaiting trial in the District Court on two indictments. The first dated 25 February 2013 (the February Information), which was listed for trial on 24 February 2014, charged the applicant with five counts as follows:
1.Persistent sexual exploitation of a child (s 50(1) of the Act) against DC the applicant’s daughter committed between 19 May 1975 and 28 February 1989.
2.Indecent assault (s 56(1) of the Act) against SC, another daughter of his domestic partner, committed between 25 March 1974 and 9 November 1975.
3.Indecent assault committed against SC between 18 May 1975 and 16 December 1977.
4.Indecent assault committed against SC between 1 August 1984 and 30 September 1984.
5.Persistent sexual exploitation of a child (s 50(1) of the Act) committed against JC, the niece of his domestic partner between 31 October 1973 and 25 January 1985.
All of the offences were alleged to have been committed in a number of homes in suburban Adelaide.
On an Information dated 25 March 2013 (the March Information), the applicant was charged with one count of indecent assault committed between 19 October 1984 and 1 June 1985 in suburban Adelaide against KD, a person of the age of 14.
On 2 May 2013, the applicant made an application to the District Court for a permanent stay of proceedings on the February Information. The application was heard on 30 September 2013, 2 October 2013 and 19 December 2013. The Judge delivered his ruling dismissing the application on 12 February 2014.[1]
[1] R v H, GJ [2014] SADC 20.
The application for a stay was made on the following grounds:
(a)The long period of time over which the offending was alleged to have been committed (Grounds 1, 3, 4, 5, 6).
(b)The circumstance that the applicant had been charged with offences against the complainants on nine prior Informations which were inconsistent with charges made in the February Information (Grounds 2 and 7).
(c)The prosecution’s misplaced reliance on s 50(4)(b)(ii) of the Act for the purposes of the persistent sexual exploitation counts (Ground 8).
(d)The “corruption” of the evidence of the complainants arising out of the way in which they were interviewed by police (Ground 9).
(e)The theft of documents which may have assisted the applicant’s defence from his house on 19 August 2012 and the police’s failure to properly investigate that theft (Ground 10).
(f)The refusal of the Magistrates Court to allow the cross-examination of witnesses in the committal proceedings (Ground 11).
The applicant did not oppose a trial on count 1 of the February Information which alleged persistent sexual exploitation with respect to his daughter, DC.
GJH was first arrested for offences committed against SC and JC in October 1987. An Information was laid in the District Court in September 1988 charging GJH with one count of indecent assault against SC and three counts of indecent assault against JC.
After the applicant’s first arraignment, the Information was amended and later again several fresh Informations were filed. GJH came before Judge Lowrie on 17 April 1989 for the determination of certain procedural issues antecedent to the trial. On that day the prosecutor accepted that the counts charging the applicant with offences against JC should be tried separately from the counts charging offences against SC. The prosecutor told Judge Lowrie that the prosecution position was based on the authority of the, then recent, decision of the High Court in Hoch v The Queen.[2]Accordingly, Judge Lowrie made orders for separate trials. After hearing argument, Judge Lowrie ordered that the evidence of uncharged conduct alleged to have been committed by GJH against SC should not be led on the trial of the counts alleging offences against her.
[2] (1988) 165 CLR 292.
After a brief adjournment, prosecuting counsel entered a nolle prosequi on both Informations informing the Judge that he was doing so as a result of the rulings which had been made that day. Counsel for GJH did not oppose the entry of the nolle prosequi and did not ask that the prosecution proceed to trial so that he might secure an acquittal.
In 2011 KD gave her first statement to police.
In August 2011 an information was filed in the Magistrates Court in August 2011 charging the applicant with 28 separate counts of rape and unlawful sexual intercourse of DC, rape, indecent assault and unlawful sexual intercourse of SC and indecent assault, gross indecency, rape and unlawful sexual intercourse of JC. On 2 November 2012 that information was replaced by another information filed in the Magistrates Court charging the applicant with offences similar to those with which he is presently charged in the February Information.
An Information was first filed in the Magistrates Court charging the applicant with offences against KD on 16 November 2011. It charged one offence of rape and another of unlawful sexual intercourse alleged to have occurred between 1983 and 1985. On 25 January 2013 another information was laid in the Magistrates Court charging one count of indecent assault alleged to have been committed between 16 October 1984 and 1 June 1985. It is that charge which is the subject of the March Information in the District Court.
Evidence and Findings on the Application
The committal declarations sworn for the purposes of the 2011 charges were prepared by a police officer who “cut and pasted” them from the 1987 statements. The Judge found that the police investigators did not interview SC and JC in order to establish the extent of their present memory of the events unaided by their earlier statement. JC and SC simply swore supplementary witness declarations on 26 July 2011 deposing that they had read their earlier statements and verifying that the statements were a true and accurate record of the events.
The Judge also received three affidavits from GJH in which he deposed to the theft in August 2012 of documents prepared by him for the purposes of defending the charges brought against him. The documents include a briefcase (briefcase 1) containing:
•all court documents including all statements of complainants ‘as marked up by me’;
•emails between himself, his solicitor and barrister;
•‘homework’, including ‘documentation identifying dates places and times that assisted me in ascertaining my whereabouts at relevant times of my alleged [sic]offending;
•medical evidence including ‘doctors letters, and medical records that assisted me in ascertaining dates, times and places including where I was residing, and the ages of the complainants at particular times’.
The medical evidence, to which GJH referred, was summarised in the reasons of the Judge as follows:[3]
In his affidavit sworn on 1 October 2013, GJH gave further particulars of the ‘medical evidence’ referred to. He deposes that after his general practitioner’s death in ‘2008 or 2009’, he collected all his medical records in original form from the doctor’s surgery and stored them in briefcase 1. He says that no copies were made. He was advised that corresponding records at the Queen Elizabeth Hospital, about which he enquired after the theft, have been destroyed.
[3] R v H, GJ [2014] SADC 20, [82].
In his affidavit sworn on 2 October 2013, GJH deposed that after entry of ‘nolle prosequi’ in 1989, he retained all the documents in his possession until about 1999 when he threw the material out. GJH described that material as follows:[4]
3.… It included notes I made on statements, an extremely detailed statement taken by Mr Redford over a series of appointments and a tape of a conversation between [SH], [DC] and [SC].
4.There were other documents but I cannot remember them in detail at this stage. They included letters from my lawyers setting out and confirming the instructions that I had given them at the time. I also have a recollection that there was a signed statement from [DC] provided to my lawyers supporting my denial of the allegations.
5.The tape contained a statement to the effect that “nothing ever happened to me” by [SC] in the context of allegations that were being made about me at that time.
6.I kept this material until sometime in 1998 or 1999. I was cleaning out my filing cabinet at the time and I thought that I would have no further use for that material.
[4] R v H, GJ [2014] SADC 20, [83].
GJH’s present solicitor, Mr Joseph Sanders, has also sworn an affidavit, dated 24 September 2013. Mr Sanders deposed that he had made enquiries of GJH’s former solicitors, Scales & Partners, and had been informed that GJH’s 1987-89 file has been ‘destroyed in line with the normal practice of the legal profession’.
On his application for a stay, GJH called Professor Coyle, a clinical psychologist. Professor Coyle was permitted to give evidence on the potential of the investigation methods of the police to “contaminate” the recollections of the complainants. He made the following criticism of the police:
The procedure adopted by the police in this matter presents a perfect example of how to potentially fatally contaminate recall of complainants re-interviewed decades after the original alleged crime. Given that there must have been discussions between the police and the complainants before they reread their original statements, which discussion would appear not to have been recorded in any systematic fashion, the prospect of other contamination cannot be excluded.
There is no objective way to properly assess the validly/reliability of the complainants’ statements decades after the allegations were made because of the way in which they were originally taken and the lack of any collateral information from other persons central to the allegations against [GJH].
The Judge’s findings on the various grounds relied on by the applicant can be summarised as follows:
•The nolle prosequi entered in 1988 did not render the subsequent prosecution an abuse of process because a nolle prosequi does not give an immunity from future prosecution.
•The nolle prosequi was entered for appropriate reasons and the decision to prosecute the February Information was also made good reason.
•The legislative abrogation of the common law procedural and evidential rules which had resulted in the orders made by Judge Lowrie did not render the February Information an abuse of process.
•The loss of the appellant’s documents did not render the proceedings unfair in that it was common place for prosecutions of historical sexual offences to be conducted without defendants having the benefit of material of that kind.
•The police had not negligently or deliberately failed to investigate the theft of the document.
•GJH is in no worse position now than he would have been, and in which many others accused of similar crimes are facing a trial on charges of sexual offences alleged to have occurred decades earlier. The February Information sufficiently complied with s 50(4) of the Act. The complaints of a lack of particularity were capable of being addressed by a trial judge exercising his or her discretion appropriately to hold a Basha inquiry.
Abuse of Process
In Jago v District Court (NSW)[5] Mason CJ essayed a statement of the principles governing the exercise of the power to stay criminal proceedings for an abuse of process as follows:[6]
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 …
The continuation of processes which will culminate in an unfair trial can be seen as a “misuse of the Court 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. …
In either event the power is discretionary, to be exercised in a principal 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. …
The test of fairness which must be applied involves a balancing process, for 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 expect 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 the 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 delay alone will accordingly will be very rare …
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 a trial judge can do in the conduct of the trial can relieve against its unfair consequences” … Where delay is the sole ground of complaint, an accused seeking a permanent stay must be “able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice in disrepute …[7]
[5] (1989) 168 CLR 23.
[6] Jago v District Court (NSW) (1989) 168 CLR 23 at 30-34.
[7] Jago v District Court (NSW) (1989) 169 CLR 23 at 30-34.
The grant of a stay of proceedings is, in effect, a refusal by a court to exercise its jurisdiction to quell a controversy brought before it. The exercise of that exceptional power must take into account the availability of an appeal in which the trial procedures and resulting orders can be reviewed and remedied if there has been a miscarriage of justice. It is very important to bear in mind before exercising the discretion to stay criminal proceedings that an accused, if convicted, has a right of appeal in accordance with s 353 of the Act. If the apprehended unfairness on which an application for a stay is founded comes to pass, there will have been a miscarriage of justice within the meaning of that term in s 353(1) of the Act. It will often be the case that it is not possible to confidently say whether the trial of an accused will be unfair until the conclusion of the trial. A stay of proceedings for an abuse of process is necessarily an exceptional order because it entails a conclusion that the resulting trial will be unfair irrespective of how the evidence unfolds, no matter what evidence the trial judge might ultimately exclude, and despite any directions which might be given to the jury.
It will have been observed that Mason CJ cast the burden on the applicant as highly as needing to show that the trial would be “necessarily unfair”. There is some analogy in this respect with staying proceedings as an abuse of process on the ground that they are necessarily bound to fail. As a general rule, only when a criminal trial will necessarily result in a miscarriage of justice should the prosecution be stayed as an abuse of process. It does not bring the administration of justice into disrepute for a trial to proceed when there is a reasonable prospect that an accused will not be forensically prejudiced even if, ultimately, it proves not to have been possible to secure the accused a fair trial, because the miscarriage can be corrected on appeal. Indeed it is more likely to bring the administration of justice into disrepute if the criminal courts were to refuse to hear criminal charges on the ground of apprehended unfairness without attempting to redress that unfairness by adopting trial procedures which have good prospects of affording the accused a fair trial.
There may, of course, be some cases which call for a stay even when there are reasonable prospects that the trial might yet be fairly conducted. In that context, the vexing of the accused by the trial process is a relevant consideration. However, it is a weighty consideration against granting a stay of proceedings that a public trial of allegations of criminal offending is a fundamental element of the administration of the criminal law. It is as important to the community, as it is to an accused, that allegations are resolved in open court so that the evidence on which an offender is either convicted or acquitted is a matter of public record.
Power to Refer a Question

It is not obvious that the Judge erred in his conclusions. Indeed there are strong considerations in favour.
Section 350 of the Act provides:
350—Reservation of relevant questions
(1)In this section—
relevant question means a question of law and includes a question about how a judicial discretion should be exercised or whether a judicial discretion has been properly exercised.
(2)A court by which a person has been, is being or is to be tried or sentenced for an indictable offence may reserve for consideration and determination by the Full Court a relevant question on an issue—
(a)     antecedent to trial; or
(b)     relevant to the trial or sentencing of the defendant,
and the court may (if necessary) stay the proceedings until the question has been determined by the Full Court.
(3)Unless required to do so by the Full Court, a court must not reserve a question for consideration and determination by the Full Court if reservation of the question would unduly delay the trial or sentencing of the defendant.
(4)A court before which a person has been tried and acquitted of an offence must, on application by the Attorney-General or the Director of Public Prosecutions, reserve a question antecedent to the trial, or arising in the course of the trial, for consideration and determination by the Full Court.
(5)The Full Court may, on application under subsection (6), require a court to refer a relevant question to it for consideration and determination.
(6)An application for an order under subsection (5) may be made by—
(a)     the Attorney-General or the Director of Public Prosecutions; or
(b)     a person who—
(i)has applied unsuccessfully to the primary court to have the question referred for consideration and determination by the Full Court; and
(ii)has obtained the permission of the primary court or the Supreme Court to make the application.
(7)If a person is convicted, and a question relevant to the trial or sentencing is reserved for consideration and determination by the Full Court, the primary court or the Supreme Court may release the person on bail on conditions the court considers appropriate.
Section 348 of the Act includes the following definition:
issue antecedent to trial means a question (whether arising before or at trial) as to whether proceedings on an information or a count of an information should be stayed on the ground that the proceedings are an abuse of process of the court;
Conclusion
For many reasons it is important that the criminal trial process should not be fragmented. That principle weighs heavily against referring a question on an issue antecedent to trial to this Court. In this case if the Judge’s ruling is indeed erroneous, the applicant’s rights of appeal against that ruling, and on any other grounds which may arise, should he be convicted, are preserved. On the other hand, if this Court were to require the questions formulated by the applicant to be stated and they were answered unfavourably to him, the trial of the charges, which are now decades old, would be further delayed. It is not in the interests of the complainants, the accused or the public that that occur.
The Judge has provided extensive reasons which, on their face, correctly refer to the applicable legal principles and relate those principles to the applicant’s particular circumstances. It suffices to record that they do not appear to suffer from any gross error. It is best not to consider their correctness any further in the light of the dismissal of the application.
For all of the above reasons we dismissed the applicant’s application to require the District Court to refer the question of the correctness of his ruling to this Court.