R v H, GJ
[2014] SADC 20
•12 February 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v H, GJ
[2014] SADC 20
Reasons for Decision of His Honour Judge Chivell
12 February 2014
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS
Accused charged on two separate informations with historical sex offences alleged to have occurred between 1973 and 1989 – three complainants on one information and one on the other. Charges with respect to two complainants were originally laid in 1987 - ‘nolle prosequi’ entered before trial in 1989 with respect to both. In 2011 proceedings with respect to the original complainants recommenced and charges laid with respect to two further complainants. Application for a permanent stay of proceedings on the charges relating to three of the complainants – multiple grounds including delay, abolition of the Longman warning, entry of ‘nolle prosequi’ in 1989, loss of benefit of previous rulings, loss/destruction of evidence, forensic disadvantage, lack of particularity and displacement of memory.
Principles applying to a stay application discussed and particular issues considered. Both applications refused.
Criminal Law Consolidation Act 1935 s 50, s 56, s 72A, s 76a, s 285AB; Evidence Act 1929 s 34CB, referred to.
Barton v R (1980) 147 CLR 75; Williams v Spautz (1992) 174 CLR 509; Jago v District Court of NSW (1989) 168 CLR 23; R v Glynn (2002) 82 SASR 426; R v Glennon (1992) 173 CLR 592; Rona v District Court of SA (1995) 63 SASR 223; Sedmak v Police [2008] SASC 307; R v Bunting (No 2) (2003) 230 LSJS 397; R v Polyukhovich (1992) (unreported, SA Supreme Court - SCCRM-92-475 - 22.12.92); R v King [2007] SASC 358; R v Jacobi (2012) 114 SASR 227; Walton v Gardiner (1993) 177 CLR 378; Longman v R (1989) 168 CLR 79; R v Cassebohm (2011) 109 SASR 465; R v Edward & Anor [2009] HCA 20; R v Swingler (1995) 80 A Crim R 471; R v Glencross (1999-2000) 206 LSJS 158; Question of Law Reserved on Acquittal (No 3 of 1995) (1996) 66 SASR 450; R v Ulman-Naruniec [2003] SASC 437; Penney v R (1998) 155 ALR 605; Holmden v Bitar (1987) 47 SASR 509; Duncombe-Wall v Police (1998) 197 LSJS 398; R v Warsap (2010) 106 SASR 264; R v Livingstone (2011) 109 SASR 380; R v Basha (1989) 39 A Crim R 337; Alexander v R (1981) 145 CLR 395; R v Goode [1970] SASR 69, considered.
R v H, GJ
[2014] SADC 20Introduction
Brief Outline of Allegations
History of Proceedings in File 116/2013
The 2011 Proceedings
A Stay of Proceedings – The PrinciplesDelay
Abolition of the Longman Warning
Explanation for Entry of ‘Nolle Prosequi’
The Significance of ‘Nolle Prosequi’
Power to Refuse ‘Nolle Prosequi’
Conclusion re ‘Nolle Prosequi’
Loss of the Benefit of Previous Rulings
Loss/Destruction of Evidence
Does the Lost Evidence Have Probative Value?Inability to Further Investigate
Forensic Disadvantage
Conclusion re Loss/Destruction of Evidence
The Nature of the Charges
Lack of Particularity
Displacement of Memory
Evidence of Professor Coyle
Conclusion re Displacement of Memory
Conclusion Generally on File 116/2013
Application in Relation to File 371/2013 – KD
Conclusion on File 371/2013Introduction
GJH has been charged on two separate informations. He pleaded ‘not guilty’ to all charges at arraignment. The informations read:
File 116/2013 – Information dated 25 February 2013:
First Count
Statement of Offence
Persistent Sexual Exploitation of a Child (Section 50(1) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
[GJH] between the 19th day of May 1975 and the 28th day of February 1989 at Largs Bay, Taperoo and other places, committed more than one act of sexual exploitation of [DC], a person under the age of 18 years over a period of not less than 3 days.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation were:
(a) touching [DC] on the breasts on more than one occasion;
(b) touching [DC’s] vagina on more than one occasion;
(c) rubbing [DC’s] vagina with his penis;
(d) rubbing [DC’s] clitoris with his penis;(e)penetrating [DC’s] vagina with his fingers on more than one occasion;
(f)inserting his penis in [DC’s] vagina on more than one occasion;
(g)causing [DC] to perform an act of fellatio upon him on more than one occasion;
(h)performing an act of cunnilingus on [DC] on more than one occasion.
Second Count
Statement of Offence
Indecent Assault (Section 56(1) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
[GJH] between the 25th day of March 1974 and the 9th day of November 1975 at Largs Bay or another place, indecently assaulted [SC].
Third Count
Statement of Offence
Indecent Assault (Ibid)
Particulars of Offence
[GJH] between the 18th day of May 1975 and the 16th day of December 1977 at Largs Bay, indecently assaulted [SC].
Fourth Count
Statement of Offence
Indecent Assault (Ibid)
Particulars of Offence
[GJH] between the 1st day of August 1984 and the 30th day of September 1984 at Taperoo, indecently assaulted [SC].
Fifth Count
Statement of Offence
Persistent Sexual Exploitation of a Child (Section 50(1) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
[GJH] between the 31st day of October 1973 and the 25th day of January 1985 at Largs Bay, Taperoo and other places, committed more than one act of sexual exploitation of [JC], a person under the age of 17 years over a period of not less than 3 days.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation were:
(a) touching [JC’s] vagina on more than one occasion;
(b) placing [JC’s] hand on his penis and moving it up and down;
(c) touching JC on the breasts on more than one occasion;(d)penetrating [JC’s] vagina with his fingers on more than one occasion;
(e) putting his mouth on [JC’s] vagina on more than one occasion;
(f)performing an act of cunnilingus on JC on more than one occasion;
(g)rubbing his penis on the outside of [JC’s] vagina.
The charges in this information are listed for trial in this Court on 24 February 2014.
File 371/2013 – Information dated 25 March 2013:
Statement of Offence
Indecent Assault (Section 56 of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
[GJH] between the 19th day of October 1984 and the 1st day of June 1985 at Semaphore or another place, indecently assaulted [KD], a person of the age of 14 years.
By application pursuant to rule 14 of the District Court Criminal Rules 2013, dated 2 May 2013, GJH seeks a permanent stay of proceedings in relation to the information in File 116/2013. The grounds upon which the application is made are as follows:
1.To require the accused to stand trial on this Indictment is both unfair and oppressive.
Particulars
a. Count 1 covers a 14 year time span.
Count 2 covers a 1 year time span – no particulars are provided.
Count 3 covers a 2 year time span – no particulars are provided.
Count 4 covers a 2 month time span – no particulars are provided.
Count 5 covers a 12 year time span.
That combination of time factors is, in itself unfair.
b.It is, given the circumstances, extremely difficult if not impossible for defence lawyers to prepare and present the defence case in an adequate and professional way.
c.It will be extremely difficult, if not impossible, for a trial judge to:
i. rule on admissibility of evidence in relation to each count;
ii. direct a jury on questions of law and the way in which a jury should approach and consider factual issues.
2.To require the accused to stand trial on Information which has been preceded by nine prior Informations, none of which are consistent with each other or the present Information is totally inconsistent with the concept of a fair trial.
3.In relation to Count 5, the particulars of the alleged offence relate to a period of approximately 4050 days.
4.In relation to Count 5, the particulars provided do not refer to any particular 3 day period within those 4050 days.
5.In relation to Count 5, the allegations of the conduct referred to are not related to any time period, nor do they relate to which acts are involved or in what order.
6.For those reasons unfairness to the accused is established.
7.That unfairness, given the history of this matter, cannot be corrected by an amendment or alteration to the Indictment and in particular with reference to Count 5.
8.The prosecution are not entitled to rely on s 50(4)(b)(ii).
9.The procedures adopted by the police investigators in obtaining the various statements from the complainants was incompetent and in the result precludes any possibility of objectively considering the validity and reliability of the statements so obtained.
10.Certain documents were stolen from the accused’s house on 19th August 2012 and the police have failed to properly investigate the theft.
11.The rejection by the Magistrates Court of any oral examination of the complainants and police witnesses has prejudiced any inquiry into
a.how and why the charges were laid following a ‘nolle prosequi’ in 1989
b.ascertaining better information as to dates of alleged offences
c.attempting to locate missing documents. (See Rule 20 Notices dated 6th September 2012 and 21st December 2012)
During the course of argument, Mr Borick QC, counsel for the accused, made it clear that the grounds for making the application for a permanent stay of this information apply to the complainants SC and JC. They do not apply to the complainant DC, who is the subject of count 1 on the information. Mr Borick said: We can have a fair trial with [DC] standing on its own (T 46).
In another application pursuant to the same rule, dated 2 May 2013, GJH seeks a permanent stay of proceedings in relation to File 371/2013. The grounds upon which that application is made are identical with grounds 9, 10 and 11 set out above, except that in relation to ground 11, the alleged results of the rejection by the magistrate of the application to cross‑examine witnesses at committal are that the decision has prejudiced any inquiry into:
(i)ascertaining better information as to dates of alleged offences
(ii)attempting to locate missing documents. (See Rule 20 Notice dated 6th September 2012)
The reasons why the applications are based upon different grounds are that the complainants in File 116/2013 first brought these matters to the attention of police in 1987, whereas the complainant in File 371/2013 did not do so until 2011.
Brief Outline of Allegations
SC was born on 17 December 1970. She gave a statement to the police on 30 July 1987. She was then aged 16 years. She told them that her father’s sister, MC, was living with the accused GJH in Joanna Street, Largs Bay. She said she often used to visit her aunt and GJH at their house.
SC alleged that during a visit when she was four or five years old, she went into the main bedroom. GJH, Auntie M and three of their children, DC, SH and SN, were also in the bedroom. Auntie M and GJH were having sexual intercourse. Various sexual activities also took place on the bed between GJH, Auntie M and the four children. SC alleged that GJH performed cunnilingus upon her.
SC then alleged that further acts of sexual exploitation occurred at the hands of GJH when she was six, including another act of cunnilingus, and there were further such acts when she was seven, and later when she was 13.
JC first spoke to the police on the same day as SC, on 30 July 1987. She was born on 31 October 1971, so she was 15 years old at that time. She told the police that her mother’s sister, MC, lived with GJH, the accused. They had four children, SH, SN, K and G. MC had another daughter, DC, from another relationship.
JC told the police that GJH’s sexual exploitation of her commenced when she was four or five years old. She remembered this occurring at a Housing Trust house at Taperoo, when, she said, GJH touched her on the vagina with his hands. She alleged that later, when she was 10 or thereabouts, he touched her vagina again and put her hand on his penis. She said that she used to go and stay with Auntie M and GJH, and all of the children often used to get into bed with them to watch television. She said these acts of sexual exploitation occurred in the bed.
JC said she was present on one occasion when GJH rubbed his penis up and down until he ejaculated. She said DC was also present when this occurred. She said that often at the house GJH would touch her vagina and her breasts. He began putting his fingers inside her vagina when she was 11 or 12.
JC described how she and Auntie M and GJH and the other children were often all in bed together watching television at around that time. The children were not allowed to wear their knickers under their nighties. When they were in bed, she said, GJH would put his fingers in her vagina and touch her breasts under her nightie. She said she often saw GJH and Auntie M having sexual intercourse in the bedroom.
JC also described GJH’s sexual exploitation of DC at around the same time. She described acts of cunnilingus by GJH upon DC. She described seeing GJH appearing to have sexual intercourse with DC. JC said she was about 12 or 13 at the time. She said GJH also climbed up on top of her after having sexual intercourse with DC, and asked her if he could ‘put it in’, but she refused.
DC first spoke to the police on 16 June 2011. At that stage, she was 40 years old and living in Scotland. She was born on 1 March 1971. Her statement was reduced to writing and she signed it as a Statement of Witness on 17 January 2012.
DC’s mother is MC. She believed her father was a person other than GJH, although she said that her mother had ‘contact’ with GJH prior to becoming pregnant with her. She grew up believing that GJH was her father.
DC said her mother and GJH commenced living together when she was about three months old. She lived with her step-siblings, SH, born on 11 November 1972; SN, born on 25 March 1973 or 1974; K, born on 15 May 1975; and G Junior, born on 12 August 1981.
DC said her first memory of sexual abuse was an occasion occurring when the family lived in Arkaba Street at Taperoo. She said that GJH, her mother, and sister SH were all in bed watching television one night. She said that GJH rubbed her breast and then tried to insert his finger in her vagina. She said that she then saw him do the same thing to her sister. She said SH became visibly upset.
DC said the majority of the sexual activity involving her occurred after the family moved to Westralia Avenue, Taperoo. She said she was seven or eight years old at the time. She described an occasion when she was lying on her back on her bunk bed, with GJH on top of her trying to insert his penis into her vagina. She described another occasion at that house when GJH had vaginal sexual intercourse with her in the bathroom. She described how she bled afterwards and GJH remarked ‘You’re not a virgin anymore’. She said she was 13 years old at that time. She said that even ‘now’ – that is, in 2011 – GJH would say, ‘I took your virginity when you were 13’.
DC said after that, acts of sexual exploitation occurred on a roughly weekly basis.
DC described another incident which occurred when they were still at the Westralia Street house. Her cousins Ch, JC and JC’s younger sister, B, were present. She described how GJH and all of the girls were lying on the floor with no pants on and GJH was fondling them all, putting his fingers in their vaginas while having penile/vaginal sexual intercourse with Ch. He had penile/vaginal sexual intercourse with all of the other girls present after that. She said that the same thing happened on another occasion, around the time of the Royal Show. She said that another similar incident occurred when GJH penetrated each of the four girls from behind. On another occasion, she said, GJH had sexual intercourse with her and JC when they were both present at the same time.
DC also described an incident in 1982 or 1983 during a houseboat holiday, when she said that GJH had penile/vaginal sexual intercourse with her on the other side of the river. She would have been 12 or 13 years old at that time.
When she was 14 or 15 years old, DC moved with the family to Waverley Street, Largs Bay.
DC said that she did not leave the family until she went to Scotland, where she has married. By the time she left home, she had had two children, both boys, born in 1987 and 1997. She said that GJH is the father of both children. She was 15 years old when she was pregnant with the first boy. She had just turned 16 when he was born.
DC said that in addition to the two children, she had another three miscarriages of pregnancies with GJH.
In summary, it is DC’s evidence that GJH had sexual intercourse with her on numerous occasions from when she was about 13 years old until she left the home and went to Scotland with her two children.
The fourth complainant, KD, is the subject of a separate information. I will outline her allegations later in these reasons.
History of Proceedings in File 116/2013
GJH was arrested and charged with the offences involving SC and JC in October 1987. The allegations against GJH by DC and KD did not come to the attention of the police until much later.
The applicant has very helpfully set out all of the relevant documents going back to the first information filed in this Court for the September sessions in 1988. That information alleged four counts of indecent assault, one in relation to complainant SC and three in relation to JC.
There was a series of amendments, and a number of fresh informations were filed in the ensuing period and, without going into great detail, the various charges are confusing and contradictory.
Be that as it may, the matter eventually came before his Honour Lowrie DCJ for trial in this Court on 17 April 1989. Prior to the trial commencing, questions of joinder and admissibility of evidence were the subject of submissions.
By that time, there were two informations before the court:
·an information dated September 1988 which, after amendment, contained three counts of indecent assault of JC (occurring between the 1st day of December 1983 and the 25th day of December 1983, between the 25th day of December 1983 and the 31st day of May 1984, and between the 1st day of May 1984 and the 31st day of May 1984);
·an information dated April 1989 which contained one count of indecent assault of SC (occurring between the 1st day of September 1983 and the 30th day of September 1983).
During the course of submissions, counsel for the Crown indicated that the application for separate trials could not be opposed in light of recent High Court authority (presumably Hoch v R[1]), ‘the background to this matter, and the delay in bringing this matter to the attention of the police’ (T 8, 17/4/89).
[1] (1988) 165 CLR 292
His Honour accordingly made an order for separate trials.
After further submissions about the admissibility of evidence of earlier uncharged conduct by GJH with SC, his Honour ruled ex tempore that the evidence should not be led.
After a brief adjournment, counsel for the Crown announced to the court:
In the light of your Honour’s ruling this morning I have instructions to enter a nolle prosequi in relation to both matters.
‘Nolle prosequi’ was accordingly entered on both informations before the court.
It can be seen from the above that, by 1989, there were already concerns about the delay between the occurrence of the alleged offences and trial. GJH was charged with offences which were alleged to have occurred in 1983 and 1984, but there were allegations of similar behaviour going back to 1972. This behaviour was uncharged, no doubt because at the time there was a statutory bar, created by s 76a of the Criminal Law Consolidation Act (‘CLCA’), which prohibited charges being laid more than three years after the offence. This bar was abolished in 1985, but the immunity arising therefrom for pre-1985 offences was not abolished until 2003 (CLCA, s 72A).
The 2011 Proceedings
The charges against GJH resurfaced in 2011. KD gave her first statement to police on 4 June 2011, SC spoke to police on 25 June 2011 and ‘reaffirmed’ the statement she gave in 1987, JC did the same thing on 26 July 2011, and DC gave her first statement (dated 17 January 2012) by telephone from Scotland on 16 June 2011.
An information was filed in the Magistrates Court in August 2011. This charged 28 separate counts alleging 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. These offences were allegedly committed as early as 1972.
This information was dismissed by a magistrate on 2 November 2012, when an information in similar terms to the one presently before this court was filed.
As to the matter involving KD, an information was first filed in the Magistrates Court on 16 November 2011. This charged one offence of rape and another of unlawful sexual intercourse, allegedly occurring between 1983 and 1985. This was replaced on 25 January 2013 with an information charging one count of indecent assault occurring between 16 October 1984 and 1 June 1985. That is the charge which is the subject of the present information in File 371/2013.
A Stay of Proceedings – The Principles
The following basic principles apply to an application for a stay of proceedings:
1.The court possesses an inherent power to stay proceedings in order to protect its processes from abuse. The power to order a stay is discretionary (Barton v R[2]).
[2] (1980) 147 CLR 75 at 95-6
2.It is a well-recognised principle that criminal proceedings will only be stayed in the most rare and exceptional circumstances (Williams v Spautz;[3] Jago v District Court of NSW[4]).
[3] (1992) 174 CLR 509 at 529
[4] (1989) 168 CLR 23 at 31
3.There is an implicit presumption in favour of proceedings continuing in the ordinary way. An order staying proceedings is an order of last resort. In Jago, Mason CJ said (at 34):
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”
4.The test for an abuse is whether the relevant act or omission is one which would diminish public confidence in the court as an institution (R v Glynn[5]).
5.The onus is on the accused to demonstrate the existence of facts which have the capacity to enliven the discretion to order a stay and that, in all the circumstances, a stay is the only remedy available in order to prevent abuse. The onus is a heavy one (Williams v Spautz, supra, at 529).
6.The court must be satisfied that there are no other means, such as appropriate directions, of bringing a fair trial. If the unfairness can be remedied and a fair trial can ensue, the proceedings should not be stayed (R v Glennon[6]).
7.Any perceived unfairness should be considered in conjunction with the legitimate public interest in the disposition of charges of serious offences, and the need to retain public confidence in the administration of justice (Rona v District Court of SA[7]).
8.The balancing process demands that the interests of the accused not be considered in isolation – there is a public interest in the conviction of the guilty (Sedmak v Police[8]).
9.It is a serious step to refuse to exercise the jurisdiction of the court – the power should be exercised with considerable restraint (R v Bunting (No 2)[9]).
10.A fair trial is not the same as a perfect trial, and it is certainly not the case that a trial will necessarily be unfair in the relevant sense unless all possible witnesses are available to give evidence (R v Polyukhovich[10]).
11.Possible prejudice or presumed prejudice are not enough to justify a stay (R v King[11]).
[5] (2002) 82 SASR 426 at 438 per Gray J
[6] (1992) 173 CLR 592 at 606-5
[7] (1995) 63 SASR 223 at 230
[8] [2008] SASC 307
[9] (2003) 230 LSJS 397
[10] (1992) per Cox J (unreported, SA Supreme Court, No. SCCRM-92-475, 22 December 1992)
[11] [2007] SASC 358 at [10]
Delay
12.An order that proceedings be permanently stayed on the basis of delay will only be justified in exceptional cases where it appears that the effect of unreasonable delay is, in all the circumstances, that any subsequent trial will necessarily be an unfair one and that the continuation of the proceedings would be so unfairly oppressive that it would constitute an abuse of process (R v Jacobi[12] per Nicholson J).
In Jago (supra) Deane J, at 60, adopted a list of relevant considerations proposed by Kirby J in his judgment as follows:
·the length of the delay;
·the reasons given by the prosecution to explain or justify the delay;
·the accused’s responsibility for, and past attitude to, the delay;
·proven or likely prejudice to the accused;
·the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime.
[12] (2012) 114 SASR 227 at 252
Relevantly to this case, Deane J said (at 58):
Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed.
In Walton v Gardiner,[13] Mason CJ, Deane and Dawson JJ said:
As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.
[13] (1993) 177 CLR 378 at 395-6
Nicholson J in Jacobi (supra) at [104]-[105], adverted to the difficulties commonly experienced in so-called ‘historical sex’ cases since the lifting of the bar by the repeal of s 76a of the CLCA:
The appellant will face the problems inherent in meeting allegations about events said to have occurred many years ago, involving quite young children. These problems include:
• the reliability or the accuracy of a complainant's recollections about which evidence is given so many years after the events;
• the difficulty confronting a trier of fact when assessing the veracity and reliability of a person, not by hearing and observing their evidence given when young, soon after the events are said to have taken place and with the child's contemporary language and understanding but after hearing and observing evidence given in the language of an experienced adult with all of the possibilities of reconstruction and re-interpretation that this entails;
• the difficulty confronting the appellant having to go well back in time to recall, check and verify the accuracy of events about which evidence is given; and
• the difficulty confronting the appellant in endeavouring to obtain and produce documentary evidence or oral evidence from other witnesses which might put in question the evidence of a complainant as to events, times and places.
These problems confront any accused person who wishes to defend historical child sex allegations and are inevitable where there is significant delay in the bringing of a prosecution. Parliament in deciding to lift the statutory immunity must have recognised that these sorts of problems inevitably would confront an accused charged, after June 2003, with historical sex offences. It was left to the courts to decide, on a case by case basis, whether or not prejudice caused by the delay was sufficient to found a stay.
Abolition of the Longman Warning
The court in Jacobi (supra) also dealt with an argument, which was not put in this case, that the abolition of what came to be known as the Longman warning means that any direction to the jury which seeks to ameliorate the effects of delay in this case would be less effective since the passage of s 34CB of the Evidence Act 1929. In other words, the accused would have had the benefit of a stronger warning prior to the enactment of s 34CB.
In Longman v R,[14] Brennan, Dawson and Toohey JJ said, at 90-1, that the:
loss of those means of testing the complainant’s allegations which would have been open to him had there been no delay in prosecution
necessitated a warning being given to the jury that:
… it would be dangerous to convict on (the complainant’s) evidence alone unless the jury, scrutinizing the evidence with great care … were satisfied of its truth and accuracy.
Further, their Honours said that:
(t)o leave the jury without such a full appreciation of the danger was to risk a miscarriage of justice.
[14] (1989) 168 CLR 79
Section 34CB is as follows:
(1)A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note—See Longman v The Queen (1989) 168 CLR 79
(2) If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a) explain to the jury the nature of the forensic disadvantage; and
(b) direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3) An explanation or direction under subsection (2) may not take the form of a warning and—
(a) must be specific to the circumstances of the particular case; and
(b) must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
Gray and Sulan JJ in Jacobi referred to Doyle CJ’s comments in R v Cassebohm[15]:
I consider that s 34CB(1) must be read as abolishing a Longman warning in the narrow sense of a warning based on the forensic disadvantage to an accused person attributable to the passage of time. Subsection (2) of s 34CB, which is clearly a qualification on subs (1), strongly supports that conclusion. So does the consideration that unless s 34CB(1) is read in that limited sense, it becomes very difficult to know what it is that is abolished. It does not abolish the duty of a judge to give a warning called for by other circumstances, nor the power of a judge to make an appropriate comment.
[15] (2011) 109 SASR 465 at [24]
In Jacobi, it was considered that an appropriate direction, conforming with s 34CB, was sufficient to address such concerns (see the judgment of Nicholson J at [112]).
In his submissions, Mr Redford, junior counsel for GJH, conceded that if this application was brought on the basis of delay alone, it would not fall into that exceptional category of cases which would justify a permanent stay of proceedings, citing R v Edward & Anor.[16]That was a case in which a stay was sought on the basis of the loss of ‘primary technological evidence’. Delay, it was submitted, strengthened the ‘prejudice’ flowing from the lost evidence [15]. So, in that case, the applicants for a stay did not rely on the overall delay in the proceedings, but referred to it as an aggravating feature of the other ground for the application, the loss of evidence. In that case, there was an unexplained delay of two years and three months, in an overall period of seven years between the time of the alleged offence and the time the matter was presented for trial. The High Court, at [34], said:
There is no feature of the delay that justifies taking the extreme step of permanently staying proceedings on the indictment. It has not been established that any prejudice arising by reason of the delay cannot be addressed by direction.
[16] [2009] HCA 20
Clearly, the question of delay in each case must be considered along with all the other circumstances of the case. As Nicholson J pointed out in Jacobi, it has been the experience of courts that, since the abolition of the bar in 2003, delays of the extent which occurred in this case are not exceptional. Accordingly, I agree with Mr Redford’s concession that, absent other factors, the delay in this matter, of itself, would not justify the grant of a permanent stay. In the following sections of these reasons, I deal with submissions made on behalf of the applicant which seek to identify those additional considerations.
Explanation for Entry of ‘Nolle Prosequi’
In her declaration dated 12 February 2012, the complainant SC described the events leading up to the entry of ‘nolle prosequi’:
After reading the document titled, “Rivett Notes”, I would like to add the following: I can see from the notes that on the 18/10/1988, I was ‘proofed’ by a DPP Officer in the presence of Police Officer Brenton Rowney. I recall meeting with a female DPP Officer and a male Police Officer, however I cannot remember their names or the date this occurred
I can see from the notes that it was recorded that I had reservations with prosecution but was willing to go ahead with it. I can say that naturally as a young girl I had reservations about giving evidence at a trial. I was scared of standing up in the stand and telling my story about what [GJH] did to me. I was a [sic] ashamed and embarrassed about what happened to me and was scared of what people might think about me. In saying this, I was prepared to overcome this to see [GJH] accountable for his actions.
I can see from the notes that on the 2/2/1989, Police Officer Brenton Rowney took me on a court tour. I can remember a male Police Officer called Brenton taking [JC] and me on a court tour. I think [JC’s mother] was there too.
I can see from the notes that its [sic] recorded that on the 17/4/1989 the trail [sic] was set to commence and that the defence wanted to run separate trials for me and [SC] and that evidence from earlier incidents could not be lead [sic] due legal [sic] reasons and this was granted. It was based on this information and the court decision that I did not want to proceed with the trail [sic] nor give evidence.
I can recall that [JC’s] and my cases were separated at the start of the trail [sic] and I was advised by the DPP Officer’s [sic] that my trail [sic] would run separately from [JC’s]. At the time I did not understand what that meant anyway and I told the DPP Officers that it did not make a difference to me and that I was still willing to proceeded [sic] with my trial. Shortly after this the DPP Officers went into the court room, stayed in there for a whilst [sic] and then came back out and spoke to me. They did this a number of times and each time that [sic] would ask me to clarify the offence date. They were asking me if it was 1974 or 1975. At the time, I was totally unclear whether it was 1974 or 1975, I was only 4 or 5 years of age when the offending took place, how could I have remembered. As a result of me not being able to accurately advise of the offence date, the DPP Officers told me that if I couldn’t remember the date, then there was an issue with the legal limitation of time and we cannot prove if the limitation had passed and as a result there was no case and that matter is finished. The DPP Officer then told me that because the trial had not commenced, I could re-activate this matter at a later time. During the time when the DPP Officers were asking me these questions, [JC], [JC’s mother] were in the same room as me and it was during this than [sic] [JC] decided she could no longer cope with the pressures of the trial and advised she was not going to go-ahead [sic] with her trail [sic].
My reasons for not proceeding with the trial at the time were not my own. These decisions were made for me and I had nothing to do with the reasons for not proceeding. I was devastated that the trail [sic] did not proceed and when I was told that I was not proceeding I became very upset, confused and emotional. I believe it was at this time that the document titled, “R v [H, GJ] 17/4/89” was produced to me and I signed it whilst emotional and have no doubt that I did not even read it.
The document referred to by SC is dated 17 April 1989 and it reads:
We, [SC] and [JC] do not wish to give evidence in the above matter nor wish to have the matter proceed.
The document is signed by both SC and JC, and witnessed by an officer of the Director of Public Prosecutions.
It is plain from the above that, on the basis of SC’s evidence:
·the decision to order separate trials did not concern her;
·the statutory bar to prosecution clearly played an important part in the decision to enter ‘nolle prosequi’;
·SC was told that the entry of ‘nolle prosequi’ was not a bar to further proceedings;
·JC’s decision that she no longer wished to participate also weighed upon her decision.
Similarly, in her statement dated 10 February 2012, JC gives her perspective on what happened prior to entry of ‘nolle prosequi’:
After reading the document titled, “R v [H, GJ] 17/4/89”, I would like to add the following: It is my signature on the document. I recall this document and I recall signing it at the Courts. I can’t recall who produced the document to me. I recall signing it because when it came to the trail, [sic] I saw [GJH] there and I became scared. I just couldn’t stand up in front of [GJH] and the members of the Jury and tell them what [GJH] had done to me. I was scared and embarrassed. I was young and it was too much to handle at the time. Before seeing [GJH], the Court and the thought of a Jury being there, I was all prepared and ready to proceed even though I was scared.
After reading the document titled, “Rivett Notes”, I would like to add the following: I can see from the notes that on the 18/10/1988, I was ‘proofed’ by a DPP Officer in the presence of Police Officer Brenton Rowney. I recall meeting with a female and being asked all sorts of questions but I cannot recall who she was or the specifics.
I can see from the notes that it was recorded that I had reservations with prosecution but was willing to go ahead with it. I can say that I did have reservations with the prosecution of the matters against [GJH]. The reservations were that I was scared of seeing [GJH] again and what everyone (family members and member [sic] of the jury) would think of me after hearing what [GJH] did to me, especially family members as even today they don’t know the full facts about what [GJH] did to me. I was also embarrassed about what [GJH] did to me and didn’t want others to know and in some small way I thought that other people would blame me for what happened. I was too young.
I can see from the notes that on 2/2/1989, Police Officer Brenton Rowney took me on a court tour. I can’t recall the dates or the specifics but I do recall being shown through the court rooms. I think [SC] and my mum, [CT] were with me.
I can see from the notes that its [sic] recorded that on the 17/4/1989 the trail [sic] was set to commence and that the defence wanted to run separate trials for me and [SC] and that evidence from earlier incidents could not be lead [sic] due legal [sic] reasons and this was granted. It was based on this information and the court decision that I did not want to proceed with the trail [sic] nor give evidence. I cannot recall ever being told this information and I don’t have any recollection of it now. I recall and still believe that I did not proceed with the prosecution for the reasons I have already described above. I do recall at the time of deciding not to proceed with the prosecution (I was at the courts), the female prosecutor telling me that, if I don’t go ahead, [SC] doesn’t have a case and her matter will be pulled too. After hearing this, I felt really bad for [SC] but I just couldn’t do it for the reasons I have already described above. I remember telling [SC] I just could not do it and she became angry at me but I just couldn’t do it.
This suggests that JC’s decision was based upon fear of the accused, fear of her family’s reaction, embarrassment, shame, and her young age. She mentions that she was told about the legal difficulties discussed by SC, but her decision was based on these more personal factors.
These are the very sort of factors referred to by the Victorian Court of Appeal in R v Swingler,[17] which I will discuss shortly.
[17] (1995) 80 A Crim R 471
Both women have explained their present attitude to these proceedings. SC said:
I am no longer young and I am stronger than I was back then. I want [GJH] to be accountable for his actions and I don’t want to bear the burden of this anymore.
(Statement 12/2/12, page 5)
JC said:
I am no longer a young scarred [sic] child and I no longer blame myself for what [GJH] did to me. [GJH] needs to be held accountable for his actions. Naturally, I’m will [sic] be embarrassed about telling people in great detail about what happened to me but I am older now and more mature and will be able to overcome this. The thought of seeing [GJH] still concerns me and might even affect me and make me very uncomfortable but I will overcome this too.
(Statement 10/2/12, page 4)
In R v Glencross,[18] Bleby J, when considering similar issues, said:
In my opinion it cannot be said, in the light of those circumstances alone that a decision to prosecute some years later when all the facts are known and when an unwilling fifteen year old has become a more mature nineteen year old, in itself constitutes an abuse of process … Given the age of AB at the time, his immaturity and his obvious reluctance, for a host of possible reasons, to have to relive his experience, if true, it was a responsible decision. Evidence available in 1997 suggested that in 1993 AB was distressed, upset and embarrassed by what had happened. The withdrawal of the prosecution was not done with any undertaking or promise not to prosecute in future … The only apparent purpose of the present prosecution is to seek to bring to justice a person charged with some very serious offences. The public interest in seeing that justice is done, whatever the result, requires that the trial proceed unless there is some truly compelling reason such that, however the trial is conducted, it cannot now be fair to the appellant.
There may always be some degree of unfairness as a result of fading or distorted memories by reason of delay in a trial. However, as I have pointed out, delay in itself is insufficient. Indeed, in some circumstances such factors can be of advantage to a defendant, bearing in mind the criminal standard of proof.
[18] (1999-2000) 206 LSJS 158 at 164-5
The Significance of ‘Nolle Prosequi’
In Swingler (supra), the Victorian Court of Appeal was considering an application for a stay of proceedings on the basis that the prosecution had earlier entered ‘nolle prosequi’ on a similar information.
The court (Winneke P, Callaway JA and Crockett AJA) said, at 479-80:
… the entry of a nolle prosequi is not in law or in fact an official act by the executive amounting to a promise or representation that the accused will not be presented again on the same charge. It is not tantamount to an acquittal: Davis v Gell (1924) 35 CLR 275 at 287 per Isaacs ACJ. It is an act "well understood at common law to amount to a termination of proceedings without an adjudication and creating no bar to a subsequent suit": Broome v Chenoweth (1946) 73 CLR 583 at 599 per Dixon J. … it does not and cannot carry with it a promise or representation of immunity from suit. Compare Croydon Justices; Ex parte Dean (at 778). There are many reasons why the prosecuting authority might choose to enter a nolle prosequi which are quite inconsistent with an intention on its part to forgo further proceedings for the same charge. Those reasons might have as much to do with the availability or capacity of prosecution witnesses as they do with the formation of a view of the strength of the case against the accused.
One of the factors regarded by the court as significant in that case was that, by the time the accused was re‑presented on indictment, a number of other complainants had come forward. I agree with the submission of Ms Ingleton, counsel for the Director of Public Prosecutions, that the fact that DC and KD have come forward since the entry of ‘nolle prosequi’ is a significant factor in this case for the same reason.
Power to Refuse ‘Nolle Prosequi’
It has been held that a court has the inherent power to refuse to allow the entry of ‘nolle prosequi’ (Rona v District Court (SA) (supra) per King CJ at 228), but that such a power should only be exercised in rare or exceptional circumstances to promote the integrity of the court (see also Question of Law Reserved on Acquittal (No 3 of 1995)[19] per Mullighan J at 451, Debelle J at 472).
[19] (1996) 66 SASR 450
There was no application in this case by the defence to Lowrie DCJ to exercise his power to refuse the entry of ‘nolle prosequi’. I do not suggest that the grounds for such an application existed at that time. But it might equally be said that there was nothing irregular, inappropriate or unusual about the prosecutor’s decision in this case, either.
Conclusion re ‘Nolle Prosequi’
In my view, the decision to enter ‘nolle prosequi’ in 1989 was made for appropriate reasons, and there was nothing irregular or unusual about what happened. Further, the decision to bring fresh proceedings was made for appropriate reasons. I agree with the submission of Ms Ingleton that the remaining question is whether GJH can have a fair trial as a result.
Loss of the Benefit of Previous Rulings
As I have already indicated, on 17 April 1989 Lowrie DCJ in this Court ordered that the information dated September 1988, which referred to JC, and the information dated April 1989, which referred to SC, be tried separately. He further ordered that evidence of earlier uncharged conduct by GJH with SC should not be led.
In File 116/2013, there are charges involving DC, SC and JC.
As I understand the position, the prosecution alleges that the evidence of each of these complainants is cross-admissible on the charges involving the other complainants, as is all of the evidence of uncharged acts which I have outlined.
Mr Borick argued that if the trial proceeds in this way, the accused GJH will have lost the benefit of Lowrie DCJ’s rulings in 1989.
Ms Ingleton acknowledged that the provisions of s 285AB of the CLCA have retrospective operation, and apply to these proceedings.
That section reads as follows:
A determination or order made by a judge of the court in proceedings dealing with charges laid in an information is binding on a judge of the court presiding at the trial of the defendant, whether the trial is the first or a new trial following a stay of the proceedings, discontinuance of an earlier trial or an appeal, unless the trial judge considers that it would not be in the interests of justice for the determination or order to be binding or the determination or order is inconsistent with an order made on such an appeal.
It will be for the trial judge to determine whether it would not be in the interests of justice for those orders to apply.
Clearly, as Ms Ingleton points out, there has been much legislation, in recent years which is retrospective in its operation, and which applies to these offences. For example, s 278 of the CLCA now deals specifically with questions of severance of joint charges in relation to charges of sexual offences.
The abolition of the bar to these proceedings being commenced more than three years after the alleged offence did not take effect until 2003.
The question of admissibility of uncharged acts is now to be determined by s 34P of the Evidence Act, whereas it was determined in 1989 on common law principles. There are several other legislative changes to this area of the law.
So, as Ms Ingleton points out, the ‘legislative landscape’ that applies to sexual offences now is vastly different to the landscape in 1989.
Obviously, the trial judge will be obliged to apply the law as it presently stands, and to discern the intention of parliament in legislating as it has in relation to these matters. It will be for the trial judge to determine whether it is not in the interests of justice that he or she is bound by those rulings made by Lowrie DCJ in 1989.
For those reasons, I do not consider it appropriate to take this factor into account when considering an application for a stay of proceedings.
Loss/Destruction of Evidence
GJH has sworn three affidavits which have been tendered.
In his affidavit sworn on 30 September 2013, he deposes that, on 19 August 2012, there was a ‘home invasion’ at his then residence at Golden Grove. He says that ‘persons’ entered his house, while he was not present, and stole two briefcases as well as personal property, namely a watch and mobile phone.
GJH lists the contents of the stolen briefcases as follows:
Briefcase 1
·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 alledged [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’.
Briefcase 2
·bank documentation, ‘accountant statements’, taxation documents and ‘personal information’.
In his affidavit sworn on 1 October 2013, GJH gives 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.
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. He said:
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.
GJH’s present solicitor, Mr Joseph Sanders, has also sworn an affidavit, dated 24 September 2013. Mr Sanders deposes that:
·Mr Sanders had been instructed to engage Mr Borick QC to act as senior counsel in the present matter, as Mr Borick had previously acted as counsel in respect of the charges GJH faced in 1988.
·GJH also instructed Mr Sanders to engage Mr Redford as junior counsel because Mr Redford had acted for GJH as solicitor when he was with the firm Scales & Partners in 1988.
·The documents which have been presented to the court in relation to these applications have been obtained from the file of the 1987 proceedings in the Central District Criminal Court.
·Mr Sanders has made enquiries from GJH’s former solicitors, Scales & Partners, and has been informed that GJH’s 1987-89 file has been ‘destroyed in line with the normal practice of the legal profession’ (paragraph 6).
Mr Sanders also purported to give evidence of information given to him by GJH in relation to the ‘home invasion’ in 2012. Curiously, those details were not included in GJH’s affidavits. Mr Sanders’ affidavit is clearly hearsay on the topic, and the purported evidence about this topic carries no weight.
Mr Sanders also deposed to dealings with the police following this incident. In particular, he asserts that the police have not provided him or his client with any information about their investigation into this matter.
I do not consider this evidence to be relevant to the application.
It seems that it is being suggested that the police have failed in their duty to properly investigate the events of 19 August 2012 thoroughly or efficiently or at all, and that, in some way, this failure is either a deliberate attempt by the authorities to hamper GJH’s ability to defend himself, or a neglect of duty which has had the same result.
If those suggestions are being made, they must be rejected. There is absolutely no evidence to support those suggestions, and the onus is on GJH to produce evidence to justify them. I have no information before me about what the police have done, or failed to do, in relation to this investigation. The only information is that they have failed to notify Mr Sanders. That is not enough. It is one thing to rely upon the loss of documents and other evidence as a factor in favour of the grant of a stay, but it is quite another to suggest that there is evidence of bad faith on the part of the police investigating the events of 2012, which should be regarded as an aggravating factor in that regard. I reject such a suggestion.
There is also an affidavit sworn on 10 September 2013 by MC about the ‘home invasion’ on 19 August 2012. MC says she had a ‘casual’ relationship with GJH for about a decade, as a result of which she had four of his children. MC is the mother of the complainant DC. Complainants SC and JC are cousins, and are both nieces of MC. She says that she and GJH have ‘remained friends’.
MC says that she had been asleep on the couch. She awoke to find three men in the room. They threatened her. One of them asked where GJH was. Later, she saw one of them hold ‘high up’ two briefcases and shout ‘I’ve got em, I’ve got em’. The three men ran out of the house. Police attended soon afterwards.
MC commented that there were certain aspects of the incident that suggested to her that the offenders, or at least two of them, were familiar with the house. Certain subsequent events have also suggested to her that members of the extended family either perpetrated the home invasion, or at least knew who did.
Does the Lost Evidence Have Probative Value?
It was not asserted that any of the lost evidence has any specific probative value. It is suggested only that it would have assisted GJH’s defence by enabling him to pinpoint dates and times of relevant events. In my experience, it is unusual in cases such as these that the accused has access to such evidence. The inability to do so is by no means exceptional.
The fact that the alleged offences occurred over a very wide date range is also relevant to this issue. Even if the accused did have the ability to identify dates in relation to specific events, it has not been established that, by doing so, the complainant’s account could be undermined in some particular way. Such prejudice is not to be presumed (R v King, supra).
Inability to Further Investigate
Mr Borick argued that when GJH was interviewed by the police on 25 October 1987, a question at page 7 of the record contains an allegation that GJH digitally penetrated SC. He pointed out that this allegation was not made by SC. He argued that the passage of time since then makes it impossible for the defence to further investigate where that allegation may have come from.
Forensic Disadvantage
It was argued by the applicant’s counsel that GJH has suffered a significant forensic disadvantage as a result of these events. There is a clear implication from the way the applicant’s case was presented, although it was not made explicit, that the home invasion was carried out by people who support the cause of one or more of the complainants, and who had the specific intention of causing him a forensic disadvantage which is additional to what might be expected if these charges had been laid for the first time in 2011.
In my view, GJH is in no worse position now than he would have been, and many other men accused of similar crimes have been, placed by the laying of charges in 2011 alleging behaviour occurring 30 or more years ago. Indeed, in the cases of DC and KD, this is precisely what has occurred.
In cases where it is asserted that a forensic disadvantage has been suffered as a result of a poor police investigation, the courts have been reluctant to stay proceedings.
In R v Ulman-Naruniec,[20] Bleby J said, at [37]:
I am not aware of any case where a stay has been granted on a ground of abuse of process because evidence, not shown to be essential to the defence case, merely might contain something of some assistance or might promote some relevant line of inquiry. If that were the case, many a prosecution might be stayed because of some failure on the part of police to investigate a particular line of inquiry that cannot later be pursued.
His Honour referred to Penney v R,[21] where one of the grounds of appeal against conviction was that unfairness and incompetence in the police investigation rendered the verdict unsafe and unsatisfactory.
In that case, Callinan J, with whom McHugh, Gummow, Kirby and Hayne JJ agreed, said at [18]:
… even though a better investigation may, and probably should have, been conducted, there is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process, or indeed a fair trial. That is not to give any imprimatur to incomplete, unfair or insufficient police investigations. Indeed there may be cases in which deficiencies in the investigation might be of such significance to a particular case as a whole that the accused will be entitled to an acquittal or a retrial. But that will all depend on the facts of the particular case.
(see also Ulman-Naruniec at [38]-[39]).
[20] [2003] SASC 437
[21] (1998) 155 ALR 605
Cases where it can be clearly established that loss of evidence will prejudice the accused are to be distinguished. For example, in Holmden v Bitar,[22] a prosecution under the Quarantine Act was stayed because the defence carried an onus to prove that the contents of imported tins did not contain meat, and its ability to do so was hampered by the destruction of the evidence.
[22] (1987) 47 SASR 509
In Duncombe-Wall v Police,[23] the police destroyed a tape of a ‘000’ call despite a specific request by the defence that they not do so, and the tape was an important factor in the credibility of a prosecution witness.
[23] (1998) 197 LSJS 398
It is clear that parliament envisaged that forensic disadvantage may be caused to an accused when ‘historical’ charges are laid. Section 34CB(2) of the Evidence Act obliges a court, when it appears that a significant forensic disadvantage has occurred, to explain to the jury the nature of that forensic disadvantage, and direct them to take that forensic disadvantage into account when scrutinising the evidence. The explanation or direction may not take the form of a warning (s 34CB(3)).
Ms Ingleton argued that a direction which complies with s 34CB is all that is required in this case.
I agree.
Conclusion re Loss/Destruction of Evidence
I conclude that the loss or destruction of evidence since ‘nolle prosequi’ was entered in 1989 has not been shown to be such as would deprive GJH of a fair trial. In those circumstances, it provides no ground for a stay of proceedings, either alone or in combination with other factors.
The Nature of the Charges
Mr Borick argued that the provisions of s 50 of the CLCA are unclear. The relevant parts of s 50 provide:
50—Persistent sexual exploitation of a child
(1) An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2) For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
…
(4) Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a) subject to this subsection, the information must allege with sufficient particularity—
(i) the period during which the acts of sexual exploitation allegedly occurred; and
(ii) the alleged conduct comprising the acts of sexual exploitation;
(b) the information must allege a course of conduct consisting of acts of sexual exploitation but need not—
(i) allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or
(ii) identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;
(c) the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—
(i) in relation to the child who is allegedly the subject of the offence against this section; and
(ii) during the period during which the person is alleged to have committed the offence against this section,
must be charged in the alternative.
(5) A person who has been tried and convicted or acquitted on a charge of persistent sexual exploitation of a child may not be convicted of a sexual offence against the same child alleged to have been committed during the period during which the person was alleged to have committed the offence of persistent sexual exploitation of the child.
(6) This section applies in relation to acts of sexual exploitation of a child whether they were committed before or after the commencement of this section.
…
(8) For the purposes of this section, a person is in a position of authority in relation to a child if the person is—
…
(b) a foster parent, step-parent or guardian of the child
…
Firstly, Mr Borick argued that the expression ‘not less than 3 days’ in sub‑s (1) is unclear. I reject this submission. There is no doubt that that expression means ‘three consecutive days’ (R v Warsap[24]).
[24] (2010) 106 SASR 264
Secondly, Mr Borick argued that the expression ‘able to be properly particularised’ in s 50(2) is unclear.
Thirdly, he submitted that the words ‘sufficient particularity’ in s 50(4) are unclear, and in conflict with s 50(2).
In R v Warsap, the Court of Criminal Appeal explained the meaning of s 50. At [7], Bleby J, with whom Duggan and White JJ agreed, said:
It is to be noted that the particulars to be alleged do not require that degree of particularity that would be required if the act were charged as a separate offence, nor is it necessary to identify particular acts of sexual exploitation or the occasions on which or the places at which or the order in which the acts are alleged to have occurred. It follows that the offence may be proved without proof of particular dates or occasions on which the acts of sexual exploitation are alleged to have occurred or the order in which they occurred. It will be sufficient if a pattern of offending behaviour during the relevant period is established beyond reasonable doubt.
On the other side of the coin, in R v Livingstone,[25] Vanstone J, with whom White and Kelly JJ agreed, said at [29]:
In any event, the point I wish to make is that, if the judge took the view that an ability to fully particularise an incident meant that such an incident could not form part of the conduct comprising the acts of sexual exploitation for the purpose of s 50, then I respectfully disagree with him. In my view there is no reason why a charge against s 50 cannot be made up of conduct which can be adequately particularised as well as conduct which cannot.
[25] (2011) 109 SASR 380
In my view, the drafting of counts 1 and 5 on the information in File 116/2013, both of which allege an offence against s 50(1) of the CLCA, is conventional and complies with s 50 and with the judgments of the Supreme Court outlined above.
I reject the submission that there is anything arising from the drafting of the information which assists GJH’s application for a permanent stay.
Lack of Particularity
Mr Borick complained that the defence is prejudiced because of the lack of predictability in what the complainants, particularly SC and JC, will say at trial.
In his affidavit, to which I have already referred, Mr Sanders deposes that, on 25 January 2013, Mr Redford appeared in the Adelaide Magistrates Court on applications filed pursuant to rule 20 of the Magistrates Court (Criminal) Rules. Attached to the affidavit are a copy of the amended rule 20 application filed on 21 December 2012 (Exhibit JHRS1), a copy of the outline of argument (Exhibit JHRS2), and a copy of a further rule 20 application (Exhibit JHRS3). Mr Sanders exhibited a letter received from Mr Redford (Exhibit JHRS4), in which Mr Redford reported on the outcome of the hearing.
Mr Redford reported that the applications both sought orders pursuant to s 106(2) of the Summary Procedure Act for an oral examination of certain witnesses. The first application was in relation to the ‘[KD] allegations’, which are now contained in the information in File 371/2013. The later application sought similar orders in relation to the ‘[SC/JC] allegations’, which are the subject of the information in File 116/2013 so far as it relates to the complaints of SC and JC.
Mr Redford reported that the application was to have the three complainants and Detectives Rivett and Rowney, Shannon Cloy, Helen Kay and GJH’s son, G, made available for cross-examination.
In his report to Mr Sanders, Mr Redford advised that he canvassed many, if not most, of the arguments which have been put to me in the course of these applications for stay of proceedings. Mr Redford reported:
His Honour after hearing argument refused the Applications. He did not give any specific reasons other than to find that the matters I raised in my arguments did not constitute special reasons.
Mr Redford argued before me that his inability to orally examine witnesses, caused by the magistrate’s refusal to grant his rule 20 applications, constitutes prejudice to the accused which forms one of several grounds, the cumulative effect of which is to justify a stay of proceedings.
I raised with Mr Redford the question whether his remedy was to apply to the trial judge for a ‘Basha inquiry’ (see R v Basha[26] per Hunt J at 339). In R v Kennedy,[27] Hunt CJ at CL said, at 351:
There is available a procedure, now known as a Basha inquiry, by which the applicant would be able to cross-examine the complainant in order to investigate, in advance of her evidence in the trial, whether she can say more than the police have so far been able to extract from her as to when and where these offences are alleged to have occurred. Provided that the investigation is strictly limited to those two issues, the procedure would be both permissible and useful.
[26] (1989) 39 A Crim R 337
[27] (1997) 94 A Crim R 341
I have already referred to the statements of the law from the High Court and other courts to the effect that the order of a stay of proceedings in relation to serious charges is a remedy of last resort.
I do not propose to embark upon an analysis of the merits of Mr Redford’s arguments before the magistrate on the hearing of the rule 20 applications, nor to seek to predict what the outcome of any application for a Basha inquiry in relation to either of these proceedings is likely to be.
However, it seems to me that any complaints about lack of knowledge by the defence of what the witnesses might say in relation to a particular issue, are more properly addressed to the trial judge in an application for a Basha inquiry. I do not regard them as considerations which should go into the list of factors which the applicant seeks to accumulate in order to justify his application for a permanent stay of these proceedings.
Displacement of Memory
SC gave her first statement to police on 30 July 1987. She was then 16 years old. That statement was converted into a ‘Statement of Witness’ and signed by SC on 14 December 1987. I have already described the allegations made by SC in those statements.
SC signed a further Statement of Witness dated 19 July 1988.
On 25 June 2011, SC signed a further Statement of Witness, which is described as an ‘addendum statement’. This statement reads as follows:
At 5.09 p.m. on Saturday the 25th of June 2011, Detective Rivett produced to me, the original statement I provided to Police Officer Helen Patricia Janetzki from the Police Sexual Assault Unit at 9.55 a.m. on the 30th of July 1987.
I saw that it contained 9 pages, my signature was at the bottom of each page and it had an exhibit label attached and it was labelled, SMC.
I read the statement and can verify that it is a true and accurate record of the events that took place back then. I recall the specific events contained within my original statement and after reading it, it has only reconfirmed the details.
Following this passage, SC made two fairly minor points of clarification and then added:
At 5.40 p.m. on Saturday the 25th of June 2011, Detective Rivett produced to me, a statement of witness document. I saw that it contained 9 pages. It was in a different format but the content was an exact copy of my original statement made on the 30th of July 1987 (Exhibit Label, SMC). I read and signed the new statement. Detective Rivett then dated it and countersigned it.
I have not seen or spoken to any of the [H] family in over 25 years. As a result, I have not discussed any of the details regarding this matter with any of the [H] family at all in over 25 years.
I have not spoken about this matter to any other person who has or may have been subject to similar treatment from [GJH or MC]. In fact I have not spoken about this matter in any great details to anyone as it was something I did not want to remember or talk about.
The Statement of Witness which SC was there referring to, also dated 25 June 2011, is in fact a reproduction of the Statement of Witness dated the 14th day of December 1987. It would appear that the original Statement of Witness has simply been photocopied onto a fresh Statement of Witness template and re-signed almost 24 years later. The marks where the previous statement was cut and pasted to fit the new format, are clearly visible on the reproductions.
On 12 February 2012, SC signed two further Statements of Witness, described as ‘addendum statements’.
The first of those addendum statements is timed at 10.02 a.m. on Sunday, 12 February 2012. It appends a copy of SC’s Statement of Witness dated 19 July 1988 previously referred to.
In the 10.02 a.m. statement, SC goes on to state:
I read the statement and can verify (excluding the bit it [sic] cannot remember which is mentioned below) that it is a true and accurate record of the events that took place back then and I recall the specific events.
After reading the statement, I would like to add the following;
On page two in paragraph one. I cannot recall the details or the events mentioned in the last part of this paragraph. I cannot remember from line eight where it states, “I remember this so well, because my cousin [SH]” to the end of this paragraph where it states, “It was finally agreed that [SH’s]’s girlfriend would keep the jacket”.
The second statement was signed at 11.23 a.m. on Sunday, 12 February 2012. To that statement were appended:
·Appendix A – a written statement signed by SC and JC and witnessed by an officer of the Director of Public Prosecutions, which states:
We, [SC] and [JC] do not wish to give evidence in the above matter nor wish to have the matter proceed.
The document is dated 17 April 1989;
·Appendix B – a hand-drawn diagram endorsed ‘Drawn by [SC] 18/10/88’, which she stated is a diagram of the house at Westralia Avenue, Taperoo;
·Appendix C – a document entitled ‘Rivett Notes’. This document is apparently undated, but in her 2012 statement, SC goes on to discuss the conversations and considerations which led to the entry of ‘nolle prosequi’ in 1989. I have referred to these matters earlier in these reasons.
It is clear from the way these documents have been prepared that in 2011/2012, no attempt has been made to establish from SC the present state of her memory of the events which are the subject of the charges. All that appears to have been done is that the statements originally made by SC in 1987 and 1988 were presented to her again, almost 24 years later, and she was simply asked to ‘reconfirm’ their accuracy.
A similar process was undertaken in relation to JC.
JC made her first statement to police on 30 July 1987, the same day as SC made hers.
The statement dated 30 July 1987 was converted into a Statement of Witness which JC signed on 13 December 1987.
I have already described the allegations made by JC in those statements.
JC signed a further Statement of Witness on 19 July 1988.
JC gave a further statement on 26 July 2011. An examination of the print which appears on this document indicates that it has been cut and pasted from the statements I have already mentioned, given about 24 years earlier. For example, on page 9 of 10, the following passage appears:
I think at the moment [K] who is about 11 or 12 and [G] who is about 7 or 8 live with [GJH] and [DC]. And [SH] who is 14 and [SN] who is 13 I think live with [Auntie M] but I don’t know for sure who is living in which house. There is the farm at Kersbrook and the flat at Taperoo. I have been to the Kersbrook farm once but I have never been to the flat at Taperoo.
This same passage appears in the Statement of Witness dated 13 December 1987. Obviously, its appearance in July 2011 renders that information about 24 years out of date.
On the same date, 26 July 2011, JC signed a further Statement of Witness, which she described as an ‘addendum statement’. This statement reads:
At 5 p.m. on Tuesday the 26th July 2011, I attended the Port Adelaide Police Station where I met Rivett. At this location, Rivett produced to me, two old statements. The first labelled, ‘JT1’ and the second labelled, ‘JT2’. I saw that these statements were the original statements I provided to Police in 1987.
I saw that the first statement contained 9 pages, my signature was at the bottom of each page and it had an exhibit label attached and it was labelled, ‘JT1’.
I saw that the second statement contained 8 pages, my signature was at the bottom of each page and it had an exhibit label attached to it and it was labelled, ‘JT2’.
I read the statements and can verify that they are a true and accurate records [sic] of the events that took place back then. I recall the specific events contained within my original statements and there is nothing I wish to add or change.
…
At 5.40 p.m. on Tuesday the 26th July 2011, Detective Rivett produced to me, a statement of witness document. I saw that it contained 10 pages. It was in a different format but the content was an exact copy of my original statements made in 1987 (that being, JT1 and JT2). I read and signed the new statement. Detective Rivett then dated it and counter signed it.
I have not seen or spoken to any of the [H] family in many years. I have not discussed any of the details regarding this matter with any of the [H] or [C] family members in many years, basically since the initial report was made in 1987. I have not spoken about this matter in any great detail to anyone and it’s not something I want to talk about.
On 10 February 2012, JC signed a further Statement of Witness. Again, she described it as an ‘addendum statement’.
Appended to that statement were the Appendix A – a copy of the statement of SC and JC dated 17/4/89, which was also Appendix A in the statement of SC, and Appendix B – the same document headed ‘Rivett Notes’, also appended to SC’s statement.
JC signed a further Statement of Witness on 10 February 2012, which, in part, reads:
At 6.12 p.m. on Friday the 10th February 2012, Detective Rivett produced to me a copy of my original declaration dated 19 July 1988. It was labelled ‘MD110’, contained 10 pages and it had my signature at the top and bottom of page one and on the bottom of pages 2 to 10.
I read the statement and can verify that it is a true and accurate record of the events that took place back then. I recall the specific events contained within my original statement and have nothing further to add.
On 20 February 2012, JC signed a further Statement of Witness, in which she referred to an incident when she was five or six years of age, and was at home in the shower and started bleeding from her vagina. It had been put to her by Detective Rivett that, from information received from her mother, she had been taken to hospital, where it was discovered that there were foreign objects inside her vagina which were removed by surgery. JC stated:
Up until Rivett rang and told about the hospital and foreign located objects inside my vagina, I still believed the blood was my period starting early. This is the first I have heard about this and I cannot recall how the objects got inside my vagina or going to hospital or having the surgery. I cannot add any further information about the incident as I do not remember.
As with SC, it is clear from these documents that no attempt has been made in 2011/2012 to establish from JC the present state of her memory of the events which are the subject of the charges. Again, all that appears to have been done is that the statements originally made by JC in 1987 and 1988 were presented to her again, almost 24 years later, and she was simply asked to ‘reconfirm’ their accuracy.
I agree with the concession made by Ms Ingleton that this methodology was unfortunate and not to the standard expected by courts.
It was this methodology which was the subject of the most trenchant criticism by Mr Borick. Most, if not all, of these criticisms are based upon the evidence of Professor Ian Coyle, who was called to give evidence.
Evidence of Professor Coyle
Professor Coyle’s curriculum vitae is extensive. He is a clinical psychologist who has published widely in the fields of clinical psychology, criminology, forensic science, psychology and law, psychopharmacology and physiological psychology, organisational psychology and safety science.
Professor Coyle was retained by Mr Sanders to ‘comment upon psychological factors relevant to the recall of the witnesses, most particularly the complainants, in this matter’.
In his report, Professor Coyle states:
6. There is a robust research literature in this area and it has been repeatedly demonstrated for over two decades that memory, particularly in cases of alleged child sexual abuse, is an interpretive process that can be significantly affected by post-event information or contamination (Davies, 1991).
…
9. There is a wealth of scientific evidence on appropriate procedures for interviewing children … These have been summarised by Wakefield (2006) and expanded on by others in some technical areas (see, generally: Landström et al., 2007). Eleven critical steps have been identified and adopted as good practice by a range of investigative bodies. The import of appropriate interviewing techniques is explicitly recognised as a criterion against which the validity of complainant’s [sic] statement should be judged within the framework of Statement Validity Analysis.
10. Since it is so important the critical steps recognised within the scientific community and major investigative organisations are iterated here. They are as follows.
. Videotape all interviews (ensuring that both a full frontal close-up of the face and a wide view of the interviewee are provided).
.Establish rapport at the beginning of the interview.
.Establish Ground Rules early in the interview.
.Conduct a practice interview during the rapport phase about neutral topics.
.Encourage a free narrative to develop using open-ended questions (as a general guideline here, it has been forcefully argued that some 75% of the interview should, wherever possible in such cases, consist of free narrative).
.If specific questions are used pair each with an open question.
.Avoid pressure, coercion, suggestion, leading questions and repeated questions.
.Avoid play fantasy and imagining.
.Avoid reinforcing specific responses.
.Avoid bias and explore alternative hypotheses.
.Interview the child alone unless too young to separate from parent.
11. There was no training available to police officers at the time the original statements from the complainants were taken in the appropriate methods of interviewing children suspected of being sexually abused. In the absence of any recording of the interviews it is simply impossible to determine how many of the basic requirements for interviewing vulnerable witnesses let alone if all of the basic requirements for interviewing of vulnerable witness [sic] (absent from recording of the interviews which clearly was not done) were followed.
12. As Coyle et all (2008, p. 478) note:
“The psychological processes involved in observation, retention, recall and identification of events is [sic] of whatever type are not discrete…they represent continuous and dynamic neural processes in the course of normal events.”
That being said, it is useful to consider these process separately both for ease of evaluation and/or because certain types of problems are characteristic of each of these stages. In forensic contexts a particularly troublesome problem occurs when the original memory for an event retained in the mind is “displaced” (altered, erased or contaminated) by subsequent events. This problem is well recognised by the law and, in the case of visual identification of an accused where a photograph, for example, of a defendant shown to witnesses after the actual event contaminates recall it has been, not unfairly, referred to as the “displacement effect”.
13. In the case of events that have occurred decades ago a particularly problematic issue is the existence of contemporaneous notes or other sources of information. Usually these are marked by their absence. However, the existence of formal notes/statements poses a different set of problems. If individuals are invited to “refresh their memory” by reference to statements made decades ago the question becomes one of determining what are they actually recalling. Simply put, do they have a thorough recall of events that occurred decades ago or has their current memory of events been displaced by the original statement/s they have been invited to “refresh their memory” by reference to? This point is pivotal in the extant matter and is discussed in what follows.
14. There are good grounds to suggest that the complainants [sic] actual recall has been displaced by the original statements.
15. Considering the language employed in the witness statements there is reason to be concerned that they do not accurately reflect the actual words used by the complainants. This clearly suggests that the police officers conducting this investigation were ignorant of the potential for post-event contamination/ displacement of memory by using such pro-forma statements. There is no way of knowing, with all that proceeds from this remarkably simple observation. One example will suffice to demonstrate this point. The ultimate paragraphs of the statements reaffirming the original statements of [SC] and [JC] are virtually identical. Clearly the phraseology employed has either been suggested to them, or their responses have been rephrased by the officers who took the statement. While there is nothing inherently wrong with using a pro-forma in such documents with adults in some situations the bald fact is that this procedure precludes the prospect of assessing exactly whom they have and have not spoken to and what they did or did not recall prior to rereading the statements made when there were in their mid-teenage years.
16. While the exact procedure employed by the police when reinterviewing the complainants is not known since there was no attempt to record the interviews it is beyond doubt that both [SC] and [JC] had the opportunity to reread the statements that had been prepared for them in 1987-1988. It is impossible then to test in any proper fashion their actual recall for events that occurred at that time as their recall for these events has been fatally contaminated by having them reread their statements. It is beyond doubt that what they are overwhelmingly likely to recall as actual memories now are the summaries of events listed in the statements prepared for them by the police officers that took the original statements. Again an example serves to demonstrate this point. [SC] deposed on 25/06/2011 that her 1987 statement was a true and correct record of what happened. In this she states that the incident happened when she was 13 years of aged [sic]; that is in September 1983. Yet in her later statement she indicated that the incident occurred in September 1984. This is not a trivial difference.
Professor Coyle concluded:
19. 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.
20. There is no objective way to properly assess the validity/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]. Other problems including the lack of training of the original investigative officers exacerbate this problem, which fatally compromises any objective assessment of the accuracy of the complainants [sic] claimed recall for events that allegedly occurred over two or three decades ago when the complainants were as young as 4-5 years of age.
21. The same problems are almost sure exist [sic] to one degree or another with the other witnesses. In addition, there is the very real prospect of inter-witness contamination of recall by conversations between witnesses and or potential witnesses that have certainly occurred in this matter since, according to [GJH’s son, G], about March 2011.
The ‘displacement effect’ is well recognised in the law. In Alexander v R,[28] Stephen J at [13] referred to it in the context of photo-identification, in the sense that when viewing a photograph of a person subsequent to the event, the image from the photograph displaces or replaces the image of the offender in the memory of the witness. Stephen J also referred, with approval, to the judgment of Bray CJ in R v Goode,[29] where his Honour referred to the dangers of this effect.
[28] (1981) 145 CLR 395
[29] [1970] SASR 69
Also in Alexander, Mason J (with whom Aickin J agreed) at [17] said:
Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognizing on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed.
The displacement effect was also referred to by Murphy J at [8].
As I understand Professor Coyle’s testimony, by analogy with the displacement effect in photographic identification, his assertion is that the re-reading of a statement given by a witness much earlier in the process, is likely to cause whatever the contents of the statement are to obliterate whatever might have been in the memory of the witness prior to reading the statement. Since the process by which the statement was obtained is uncertain, and the witness is no longer able to exercise an independent judgment as to whether the contents of the statement are true or not, it is Professor Coyle’s contention that the evidence is rendered valueless.
I note that the High Court in Alexander’s case held that, notwithstanding the notorious fragility of human memory in assessing photo identification evidence, such evidence remains admissible, provided an adequate warning is given to the jury of the dangers of its use and provided that the trial judge correctly exercises his or her discretion to exclude the evidence if its prejudicial effect does not outweigh its probative value (Mason J at [30], [38] and [39]).
Professor Coyle was cross-examined by Ms Ingleton. Ms Ingleton asked whether it was Professor Coyle’s position that it would be unsafe in any circumstances to today prosecute for a matter which occurred more than five years ago. Professor Coyle’s reply was as follows:
No, it does not follow at all. What it does mean is that we have to be aware of the limitations of memory and there have been numerous legal decisions on that point that I do not need to dwell on. This is well established. We need to be aware of limitations of memory but we are stuck with it to one degree or another because in essence a criminal trial is an attempt to re-create the past. We are trying to re-create the past. So, bearing that in mind, there is a continuum on which memory is either very, very reliable down to very unreliable and that is going to vary in each individual and in each particular case. There is no blanket rule that we can apply. We have to look at them from a psychological perspective.
(T 73)
This answer encapsulates the issue for me on this topic. It seems to me that whether or not the memories of the witnesses SC and JC have been affected by reading, in 2011, statements given almost 24 years earlier, is a question for the jury in assessing the credibility and reliability of their evidence. It is a matter of routine for witnesses to read the statements they have previously given before giving evidence. They are routinely cross-examined about any inconsistencies between the statement and their present testimony.
The dangers of the displacement effect which apply to the evidence of these witnesses are no greater than the danger of the displacement effect in a case involving photo-identification evidence, and Alexander’s case makes it clear that such evidence is admissible and appropriate to be left to a jury provided well-recognised safeguards are adopted.
Taking that analysis a step further, it seems to me that the danger of the displacement effect arising from the reading of statements previously given would be little different from what it would have been in 1989, had the trial proceeded then. Even at that stage, the relevant events occurred anywhere from four to 14 years previously, after which time the memories of the witnesses would have been susceptible to displacement, even by statements given in 1987, only two years prior to the trial.
Conclusion re Displacement of Memory
Provided the trial judge exercises his or her discretion to admit the evidence, and provided the jury is warned adequately about the dangers of relying upon it, I do not see that the process by which these witnesses read their previous statements gives rise to grounds for a permanent stay of proceedings, either alone or in combination with the other factors I have considered.
Conclusion Generally on File 116/2013
I have examined each of the grounds which GJH has put forward in his application for a stay of proceedings in this file. I have also considered whether, even if the grounds identified might only have slight weight, when taken in combination they would justify a stay. In my view, they do not. Indeed, I do not think that accumulating these points in such a way adds anything to the overall strength of the applicant’s case. For example, the loss of the benefit of the 1989 rulings by Lowrie DCJ is adequately dealt with by resort to s 285AB of the CLCA. The loss or destruction of exhibits is adequately dealt with by resort to s 34CB(2) of the Evidence Act. Neither point adds to the other. Nor does either point add to the issue of displacement of memory.
Mr Borick did not seek to argue in what way such interaction might occur. He approached the case simply on the basis that all these factors ‘add up’ to a stay. In the reasons set out above, I am not satisfied that is so.
For those reasons, the application for a stay of proceedings in File 116/2013 is refused.
Application in Relation to File 371/2013 – KD
KD was born on 1 October 1970. The information alleges an offence of indecent assault committed between 19 October 1984 and 1 June 1985 at Semaphore, and that at the time, KD was a person of the age of 14 years.
KD first spoke to the police on 6 August 2011. She said she came into contact with GJH through friendship with Ch. She said that she and Ch would visit the H family at their house at Taperoo. She came to regard herself as part of Ch’s family. She called GJH [‘Uncle G’]. Her allegation is of a single incident which occurred when they were swimming at the beach with the H family and GJH penetrated her vagina with his finger. She said she had never seen GJH since that day.
She said she had told SC about the incident at some time after the court case, presumably a reference to the earlier proceedings which culminated in April 1989. I was told that SC has no memory of any such complaint having been made to her.
KD said that she first spoke to the police after having been approached by Senior Constable Rivett by telephone in July 2011.
Mr Redford argued that the following factors justify the grant of a stay of proceedings:
·the length of the delay;
·the absence of any reason proffered by the prosecution which explains the delay;
·prejudice to the accused.
Mr Redford argued that because SC cannot remember a complaint being made to her by KD, it exacerbates the prejudice suffered by the accused. I reject this submission. It is by no means unusual that evidence of initial complaint (see s 34M of the Evidence Act) is given by one witness but not remembered by another. It is a matter for a jury to consider whether or not it is satisfied that the complaint has been made and, if so, then to consider the uses to which that complaint can be put as authorised by s 34M. I do not accept that this issue is one which could justify a stay of proceedings. This was conceded by Mr Redford (T 162).
As to the length of the delay, I fail to understand how the situation in relation to KD can be distinguished from the case of DC. Both of them gave statements to the police for the first time in 2011 concerning events almost 30 years earlier. For reasons which I have already discussed, it is by no means unusual to see delays of this length in cases of this sort and, by itself, would not justify a stay. To the extent that it may cause a forensic disadvantage to GJH, for reasons explained earlier, a direction under s 34CB(2) of the Evidence Act is sufficient to ensure that GJH can have a fair trial.
Mr Redford said that the factors which were also put forward in relation to the other application, including the loss of documents, the inability to cross-examine by the magistrate’s decision on the rule 20 application, and the other matters identified, should all be taken into account in relation to this matter, and for the same reasons.
One issue which specifically applies to this charge is the evidence of Helen Kay, an employee of Families SA since 1970. Ms Kay was a child protection worker in the Port Adelaide office in 1987. It was then known as the Department for Community Welfare. Ms Kay wrote a report of a meeting on 13 August 1987 about the C/H families. The report recorded that DC and KD had been interviewed, but had not disclosed abuse.
It was argued that GJH was prevented from further investigating contacts with the family made by welfare officers in 1987 which could throw further light on the issues surrounding KD’s allegations. For example, it is not explained why there is mention of KD’s allegations in 1987 yet she did not speak to the police until 2011.
I agree with the submission of Ms Ingleton that these are all issues that can be explored in cross-examination. It is true that the people involved no longer have memories of these incidents, but that is also a common feature of these prosecutions, and does not justify a stay. It could be the subject of a s 34CB(2) direction should the trial judge deem it appropriate.
For the reasons I outlined in relation to the application in relation to File 116/2013, I do not think that any of these factors, either separately or taken in combination, justify a stay of proceedings.
Conclusion on File 371/2013
The application for stay of proceedings in relation to this file is refused.
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