R v H No. SCCRM 95/294 Judgment No. 5132 Number of Pages 15 Criminal Law General Matters

[1995] SASC 5132

COURT IN THE COURT OF CRIMINAL APPEAL OF THE SUPREME COURT OF SOUTH AUSTRALIA PERRY(2), MULLIGHAN(1) AND DEBELLE(3) JJ

CWDS
Criminal law - general matters - criminal liability and capacity - Abuse of process rape - allegation made many years after alleged offences - brought to trial on charges specifying occasions of offending with particularity in the form of narrow time frame - trial proceeded on that basis - evidence in Crown case supported particularity - proof of alibi after the closing of Defence case - Crown permitted to amend to broaden particulars but without support in the evidence - mistrial - fresh information - change of story by prosecutrix as to dates of alleged offending - application for permanent stay dismissed - claim that verdicts of guilty at trial unsafe and unsatisfactory - no basis for a mistrial - accused entitled to verdicts of acquittal - continuation of the prosecution amounts to abuse of process - evidence in support of convictions unreliable - verdicts unsafe and unsatisfactory.

Criminal Law Consolidation Act 1935, s353(1); Chidiac v The Queen (1991) 171 CLR 432; Jago v The District Court of New South Wales and Ors (1989) 168 CLR
23; Walton v Gardiner (1993) 177 CLR 378; A v Dorsi (1918) 13 CrAppR 158; The Queen v Pfitzner (1976) 15 5ASR 171; McDermott v The Queen (1987) 45 SASR 335; R v Jacobs (1991) 2 QdR 541; Hartley v R (Court of Criminal Appeal, 6 September 1994, Judgment No 4754, unreported, available on SCALE); G v R (Court of Criminal Appeal, 4 April 1995, Judgment No 5019, unreported, available on SCALE); Johnson v Miller (1937) 59 CLR 467; A v Dean (1932) NZLR
753; R v Phil Maria (1957) StR Qd 512; Moevao v Department of Labour (1980) 1 NZLR 464; M v The Queen (1994)181 CLR 487, referred to.

HRNG ADELAIDE, 23 October 1995 #DATE 22:11:1995 #ADD 12:12:1995

Counsel for appellant:     Mr W Boucaut

Solicitors for appellant:    Moloney and Partners

Counsel for respondent:     Mr P R Brebner

Solicitors for respondent: DPP (SA)

ORDER
Appeals allowed.

JUDGE1 MULLIGHAN J The appellant was found guilty by verdict of the jury of two counts of rape. Both offences are said to have occurred at Paralowie between 6th May 1986 and 17th November 1986, on one occasion by vaginal sexual intercourse with his niece by marriage and on the other occasion by inserting his finger in her vagina. The appellant appeals against the convictions.

2. The proceedings against the appellant have had a long and unfortunate history. In order to resolve issues raised on this appeal, it is necessary to mention some of this history in some detail. The appellant is now aged 58 years and the woman is now aged 26 years. She was aged 16 or 17 years when she says the offences occurred. She did not complain to the police about the alleged rapes until she made a statement on 23rd June 1993. She was then aged 24 years. Apparently her younger brother told her that he had complained to the police and so she then made her complaint. She related various occasions when she said the appellant had sexually abused her commencing when she was aged 8 or 9 years. She claimed that he sexually abused her in various ways thereafter, until she commenced to live away from the vicinity of his residence, including when she lived interstate.

3. Eventually she returned to live in this State and at the home of her aunt and the appellant at Paralowie. In this statement she said she was aged about 16 years. When she was aged about 17 years the woman moved to another house at Paralowie in the same street.

4. On one occasion she went to the home of her aunt and the appellant. In this statement she said she was then aged 17.5 years. She claimed that the appellant sexually abused her on this occasion and then raped her as alleged on the first charge in the Information, by inserting his penis in her vagina. She then related the incident which is the subject of the second charge. She said it occurred in her home about two weeks after the incident which is the subject of the first charge. She fixed the time as in July 1986. According to her, this was the last time any sexual conduct of such a nature occurred.

5. On 18th July 1993 a police officer spoke to the appellant at his home and told him that the woman had alleged that he had sexually abused her in July 1986 in a way which amounted to rape. He denied the allegation and was arrested. He was taken to the Elizabeth Police Station. He refused to answer questions and said that he did not, at that time, want the detail of the allegations put to him. He was arrested and charged with rape. The statement of the woman was put into a form suitable to be used at a preliminary hearing and was signed by her and dated 5th August 1993. That statement was supplied to the appellant at the time he was committed for trial.

6. On 25th October 1993 the first Information was filed by the Director of Public Prosecutions in the District Court alleging two counts of rape. The particulars of the charges were that both offences were alleged to have occurred between 1st June 1986 and 1st September 1986 at Paralowie. The first count alleged vaginal sexual intercourse in the conventional sense and the second count alleged digital penetration of the vagina. The Information also contained two counts of indecent assault upon the woman's brother but they eventually became the subject of separate proceedings and are of no significance in this appeal. The appellant was arraigned in the District Court on 25th October 1993 and pleaded not guilty. Eventually a nolle prosequi with respect to this Information was entered on 15th February 1994.

7. A second Information was then laid charging two counts of rape and a count of unlawful sexual intercourse in the alternative to each of them. The incidents, the subject of the charges, were the same as particularised in the first Information, except that the alleged rape, and the alternative charge, involving vaginal sexual intercourse, were alleged to have occurred between 25th February 1985 and 28th February 1985 and the alleged digital rape, and the alternative charge, were said to have occurred between 1st March 1985 and 30th April 1985, well over a year before the time when these incidents were alleged in the first Information and the woman's statements to have occurred. The Crown did not proceed on this Information.

8. A third Information was laid on 3rd May 1994. It differs from the second Information in that there is no charge of rape by way of digital sexual intercourse. The charge relating to that alleged incident was indecent assault. No doubt the reason for this change was that as the law stood in February and March 1985, digital penetration of the vagina did not constitute sexual intercourse for the purpose of sexual offences. The amendment to the Criminal Law Consolidation Act 1935 to provide for an expanded meaning of sexual intercourse did not come into operation until 1st December 1985. It seems that this Information was laid in consequence of the woman making a further statement to the police on 27th November 1993 in which she said that the incident of vaginal sexual intercourse occurred exactly three days before she commenced a full-time job with a firm by the name of Brejoh Security on 1st March 1985. She went on to say in this statement that she could now remember when the incident occurred because she had a job reference typed by the manager of that firm which indicated that she commenced that employment on that date and that she had only recently located that reference.

9. The appellant came to trial in the District Court on the third Information on 3rd May 1994. He pleaded not guilty to all counts and elected to be tried by Judge alone without a jury. The trial proceeded on the basis that the alleged incidents occurred as particularised in the third Information. The woman gave evidence. She said that she started employment with Brejoh Security on 1st March 1985. She then identified the job reference and it was admitted into evidence. It includes the statement that the woman was employed by Brejoh Security in a full-time position from 1st March 1985 until 29th June 1985. Later in her evidence-in-chief she said as to the occasion of the first incident of alleged vaginal rape:
    "Q. You say this happened three days before you started
    work at -
    A. At Brejoh Security.
    Q. You have got a clear memory about that.
    A. Yes.
    Q. Why is that so clear.
    A. It was just something really gross just happened to me -
    I just got a job. I don't know why.
    Q. Just something you remember
    A. Yes.
    Q. So you then started your job with Brejoh Security.
    A. Yes."

10. Her evidence as to this incident occurring three days before she commenced employment was confirmed in cross-examination on a number of occasions. Perusal of the transcript of her evidence reveals that she claimed to have a clear memory of the occasion having occurred three days before she commenced work. Later in cross-examination, she said:
    "Q. You are sure that it was three days before 1 March.
    A. Three or four.
    Q. Three or four.
    A. Yes.
    Q. You told the police officer that it was exactly three
    days before.
    A. I did not tell them exactly. I said I thought it was
    three days before. I didn't say exactly.
    Q. You think it might have been three or four days before.
    A. Yes, but I am more sure that it would have been three
    than four."

11. At the conclusion of the Crown case, the prosecutor was permitted to amend the particulars of the first and second counts of the Information to allege that the incident occurred between 24th February 1985 and 28th February 1985. The only evidence in the prosecution case was the evidence of the woman, a certified copy of the birth certificate of the woman, the job reference and the evidence of the police officer as to the conversation he had with the appellant and as to the arrest and the charge which was given by admitting his statement of witness.

12. The appellant did not give evidence. He called a clerical officer from the Department of Correctional Services. Before that occurred the prosecutor was permitted to speak to the witness. He ascertained that the evidence to be given was that the appellant was in prison at a relevant time. No alibi notice had been given and the prosecutor objected to the evidence. He foreshadowed that if his objection was overruled, he would ask for an adjournment in order to take instructions and that he may want to call further evidence. The evidence was allowed and the clerical officer produced records of the Department which revealed that the appellant was in prison from 10th September 1984 until he was discharged on 28th February 1985. He said that this information was confirmed by records of the Parole Board, and that the time of release could be any time during the day between 8.00am and 5.00pm. If this evidence was accepted, and there was no apparent reason why it should not be accepted, the appellant had a complete answer to the first charge and the alternative charge of unlawful sexual intercourse. Also, the reliability and accuracy of the woman's evidence would be seriously called into question which would have a bearing upon the charge of indecent assault.

13. The trial was adjourned to the next day. The Defence case was closed. The prosecutor obtained leave to amend the Information once again over the opposition of the appellant's counsel, Mr Boucaut. The particulars of the first and second charges were amended so that the period during which the incident was said to have occurred was between about 25th February 1985 and about 5th March 1985, even though there was no evidence that the incident occurred other than as deposed to by the woman. The prosecutor made it plain that he did not seek a mis-trial. He contended that the evidence and the failure to give an alibi notice would permit the finding that the incident occurred at some later time after the appellant was released from prison. Mr Boucaut sought a mis-trial due to the belated amendment which, he argued, had caused prejudice to the appellant as he had come to court to meet the charge as particularised against him and had conducted his defence accordingly. He claimed that to extend the period in which the first incident is alleged to have occurred would have meant that the appellant was facing conviction on an entirely different basis. The Judge rejected that application and said that he would consider any application for prosecution witnesses to be recalled, for the appellant to change his stance and give evidence and for an adjournment to permit investigation by the Defence. The trial was adjourned to a date to be fixed.

14. On 30th May 1994 the woman made yet another statement to the police. She changed her story as to when the incidents occurred once again. She said that she did not move to her separate accommodation at Paralowie until the beginning of 1986 and after she attained the age of 17 years on 4th December 1985. In this statement she revealed an explanation for having obtained the job reference. She knew the man who ran an escort agency. He used to visit her at her home at Paralowie and have coffee with her. She said that after the first incident of rape, the appellant had given her money. She felt low and degraded and if he could treat her that way and get away with it, she might as well have sex for money. She approached this man for a job. He said he would not let her work as a prostitute but gave her work as a receptionist. Eventually her stepfather became suspicious about where she was working and asked her if she was working for an escort agency, which she denied. She obtained the reference to indicate that she was doing office work for a security company in order to resolve the suspicion of her stepfather. She said that she did not pay any attention to the dates in the document at this time. In this statement she said that she obtained the reference towards the end of the time she worked at the escort agency.

15. In this statement the woman said that she could fix when the first incident of sexual intercourse occurred. She said it occurred shortly after her sister was born on 19th May 1986 and shortly after she had been involved in a road accident about two weeks after the birth of her sister. Also she said that on the day before the trial she told a solicitor in the office of the Director of Public Prosecutions that the dates of the alleged incidents were wrong because she was aged 17 years at the time but the solicitor said the dates on the reference would be right. She said that on the day she gave evidence at the trial, she gave the same information to the prosecutor and he told her not worry about it. She said she told him that the dates were wrong because she was aged 17 years when the alleged incidents occurred.

16. The trial resumed on 3rd June 1994. Mr Rofe QC, the Director of Public Prosecutions, then appeared for the Crown. He informed the Judge that information had been received by the Crown which indicated that the trial had proceeded on an erroneous basis, namely the accuracy of the job reference. He said that his information was that the offences occurred at a different time which, at that stage, he did not specify. He acknowledged that the appellant could not be convicted on the evidence as it stood, not because the date was material, but because he had been "severely prejudiced" in the presentation of his defence as he had relied upon an alibi as to the facts upon which the Crown chose to allege and had elected not to give evidence. Nevertheless, he contended that justice did not demand an acquittal although that was an avenue open to the Judge. He sought a mis-trial, in which case the decision as to the future of the charges would be left with him as the Director of Public Prosecutions. He acknowledged that if he decided to proceed at a later date, the Court could consider any application for a stay on the ground that to proceed would be an abuse of the process of the Court.

17. Mr Boucaut submitted that the trial should proceed and that the appellant should be acquitted. The Crown had provided the appellant with information a few days earlier about the woman's change of story. This submission was rejected and the Judge held that there had been a mis-trial and discharged the accused.

18. A new Information was laid on 8th September 1994 charging two counts of rape being the same two incidents of vaginal intercourse and digital intercourse. However, that period in which the offences were alleged to have occurred was between 6th May 1986 and 17th November 1986, which is a broader period than what was alleged in the first Information.

19. The matter came before another District Court Judge on 8th September 1994. The appellant sought a stay of the proceedings on the ground that it would be an abuse of the process of the Court to proceed. That Judge heard extensive argument and dismissed the application. Regrettably, I do not think he gave any reasons for his decision. In what purports to be reasons, he said:
    "I do not propose to give lengthy reasons in this matter, to
    do so would involve repeating argument that has already
    occupied a great deal of time and is already fully recorded.
    The legal position is clear and in a nutshell this court has
    an inherent power to stay proceedings which amount to an
    abuse of process. This involves a weighing up between the
    needs of the community and the needs of the accused.

On balance I accept the Crown's submissions in this case.
    They accord with my own views as to the facts as outlined
    and the authorities cited and accordingly the application is
    refused."

20. These "reasons" are singularly unhelpful. On this appeal this decision is brought into question and we have to try and discern from the transcript what was the basis for this very important decision.

21. On 12th December 1994 the proceedings were transferred to the Supreme Court. On that day a nolle prosequi was entered with respect to the third Information and the trial commenced before a Supreme Court Judge without a jury. At the conclusion of the trial, but before any verdicts had been given, an irregularity in the election for trial by judge alone was discovered and the Judge concluded that the trial was a nullity. The appellant was remanded for trial. During this trial the evidence of the woman was, in general terms, in accordance with her statement of 30th May 1994. She said the incidents occurred about two weeks apart and that when she gave evidence in the District Court, she was aware that the dates between which the incidents were said to have occurred were wrong and that she did not disclose that inaccuracy in her evidence. Indeed, as has been seen, she insisted that the dates were correct. She explained that she had always known that she was aged 17 years and not 16 years at the time. Both the solicitor employed by the Director of Public Prosecutions and the prosecutor gave evidence. The solicitor told the Court that she spoke to the woman on the telephone on 15th November 1993 before the trial in the District Court and that the woman said that she could pinpoint the date of the first incident. She said it occurred three days before she started a job and she had found a reference for that job. At no time did the woman ever question the reference or its accuracy. She did recall speaking to the woman on the Friday before the trial in the District Court and said that the woman seemed to think that she was older than she would have been at the times indicated in the Information and that she seemed generally confused. However, the reference and its accuracy were never questioned by the woman on this occasion. The solicitor said that she could not say if she said to the woman that the dates in the job reference would be correct.

22. The prosecutor told the Court that he had a brief conversation with the woman on the morning of the trial before she gave evidence. He said he could not remember if there was any conversation about the job reference, however, he said that she did not say there was any problem about its accuracy. At no time did he suspect that there was anything wrong with the reference. He regarded it as a reference point for the fixing of the date of the first incident. He had no reason to believe that the contents of the document were incorrect in any way or that her evidence-in-chief was incorrect. He denied that she told him that the dates were incorrect or that he told her not to worry about them.

23. After this trial was aborted, the appellant made an application for a permanent stay of the proceedings against him which came on for hearing before another Supreme Court Judge on 24th March 1993. On 13th April 1995 that application was dismissed. It seems that the grounds of the application for a permanent stay on the grounds argued before the District Court Judge were again argued but supplemented by the additional factual matter that the woman had since given evidence on oath at the trial before the Supreme Court Judge and had given an explanation for the inaccuracy in the dates at the trial in the District Court which was in conflict with the evidence of the solicitor and the prosecutor. The Judge went on to say that decision of the second District Court Judge was correct but he does not say why he reached that conclusion. However, he said say:
    "As for the argument of Mr Tilmouth QC, for the appellant,
    that either the alleged victim has committed perjury or
    there has been professional misconduct by the solicitor in
    the DPP's office and the by the Crown Prosecutor, I doubt if
    that is to the point. The question in the trial is as to
    whether the applicant raped the alleged victim, not whether
    the alleged victim and the two legal practitioners are
    guilty of offences not directly linked to the circumstances
    of the alleged rapes. Granting a stay of these proceedings
    would do nothing to settle those latter questions."

24. If that is the reason for dismissing the application, it would appear that the Judge did not address the real issue on the application for a stay on the ground of abuse of process.

25. The second ground for a stay was that the appellant was entitled to plead autrefois acquit as the first District Court Judge should have entered a verdict of not guilty. It is unnecessary to say any more about this ground as it was rejected by the second Supreme Court Judge and that decision is not challenged on appeal. The decision of this Judge on the application for a permanent stay is also called into question on this appeal.

26. The appellant came to trial before another Supreme Court Judge and a jury on 29th May 1995 and was found guilty of both counts of rape. The woman gave much the same evidence as she had given at the trial before the first Supreme Court Judge which was aborted and, in particular, she gave the same explanation as to why she had given the evidence about the job reference, why she fixed the dates of the incidents in relation to that reference and that she had told the solicitor and the prosecutor of the inaccuracy. They both gave evidence before the jury. The solicitor said that the accuracy of the reference was never questioned by the woman in discussions with her. The prosecutor told the jury that the woman had not told him that the dates in the Information before the District Court were incorrect. He said that if he had been told of any inaccuracy, he would have sought an adjournment and investigated the reliability of the reference. He would not have told the woman not to worry about it because, to him, it would have been a worry.

27. The first ground of the appeal is that the prosecution of the appellant after the aborted trial in the District Court was an abuse of the process of the Court and the Court was in error in not ordering a permanent stay of the proceedings. The second ground of appeal is that the verdicts of the jury are dangerous and unsafe, which may be understood to mean that they are unreasonable or cannot be supported by the evidence (s353(1) of the CriminalLaw Consolidation Act 1935) or that they are unsafe and unsatisfactory: Chidiac v The Queen (1991) 171 CLR 432.

28. In essence, the appellant's contention as to the first ground is that the continuation of the prosecution after the first trial in the District Court was oppressive to the appellant because he was entitled to be acquitted on the state of the evidence at that trial. Furthermore, it is said, the continuation of the prosecution is an affront to the public conscience because, if the woman's evidence at the subsequent trials is correct, the Crown was aware that the particulars in the Information were wrong and she gave false evidence at the first trial with the knowledge and acquiescence of officers of the prosecuting authority. Alternatively, if the evidence of those officers is correct in their rejection of the woman's assertion, her evidence at any subsequent trial would have the effect of compounding her earlier testimony by seeking falsely to lay the blame for her false evidence upon the officers of the prosecution authority.

29. The inherent power of the Court permanently to stay criminal proceedings which are an abuse of the process of the Court cannot be doubted. However, it is a power which is to be exercised only in rare and exceptional circumstances. Ordinarily the Crown is entitled to have an accused person tried on any Information filed by the Director of Public Prosecutions. It is in the community interest that those charged with crime should be brought to trial so that if found guilty, they may be adequately punished. Nevertheless, the Court is obliged to protect the integrity of its process and may permanently stay criminal proceedings which, if allowed to continue, would give rise to unfairness to an accused person or to oppression or injustice: Jago v The District Court of New South Wales &; Ors (1989) 168 CLR 23 and Walton v Gardiner (1993) 177 CLR 378. If the Court discerns that there are grounds which may justify a stay of criminal proceedings, there is a balancing exercise. In Walton v Gardiner (supra), Mason CJ, Deane and Dawson JJ explained that exercise as follows, at pp395-396:
    "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."

30. What is the significance of the changes in the story of the woman? She has consistently referred to the two incidents of alleged rape. With one exception, which is mentioned later, changes of story have related to when the incidents occurred and not otherwise. Mr Brebner contended that the changes in the dates, or periods during which the offences are said to have occurred, is of no significance even if the effect is to nullify an alibi. Such changes, it is argued, could not afford a sound reason for a stay of criminal proceedings. Usually date when criminal conduct is alleged to have occurred is not material.

31. Dates in particulars of a charge are not to be regarded as an element of the offence or even as a material matter unless it is essential part of the offence: R v Dorsi (1918) 13 CrAppR 158; The Queen v Pfitzner (1976) 15 SASR
171; McDermott v The Queen (1987) 45 SASR 335; R v Jacobs (1991) 2 QdR 541; Hartley v R (Court of Criminal Appeal, 6th September 1994, Judgment No 4754 (unreported, available on SCALE)) and G v R (Court of Criminal Appeal, 4th April 1995 Judgment No 5019 (unreported, available on SCALE)). Examples where that could be the case are where the age of the alleged victim is an essential element of the charge or, in former times, where the one year and one day rule applied in cases of homicide. However, that is not to say that the particulars of the date when, or period of time during which, the offence is alleged to have occurred are not important. As Bray CJ observed in The Queen v Pfitzner (supra) at p185:
    "Whether the date alleged in an information is vital to the
    charge must depend on the circumstances. So long as it is
    clear that the controversy turns on the events of a certain
    occasion, it may not matter if the date of that occasion is
    misstated if the occasion itself is clearly identified and
    both parties have directed their cases towards it; cf Page
v Butcher (1957) SASR 165. But obviously if a man is
    charged with committing an offence on Saturday and comes
    prepared with an alibi for Saturday, he cannot be convicted
    of committing the offence on Friday or Sunday, unless
    perhaps the information is amended and the trial adjourned
    to enable him to meet the new case. If authority is needed
    for so obvious a proposition, it will be found in Wright v
Nicholson (1970) 54 Cr App R 38."

32. Wells J said at p192:
    "Particulars in an information tend to belie their own name.
    They are an aid, but can never be more than an aid, to
    determining what exactly the defence is called on to
    answer."

33. Any accused coming to trial is entitled to know what allegation he or she has to meet. In Johnson v Miller (1937) 59 CLR 467 at p489 Dixon J said:
    For a defendant is entitled to be apprised not only of the
    legal nature of the offence with which he is charged but
    also of the particular act, matter or thing alleged as the
    foundation of the charge."

34. There may be cases where even though the particulars of when an offence is alleged to have been committed is not an element of the offence, it may be material to the integrity of the criminal process and I think this is such a case. As Derrington J observed in Jacobs (supra) at p544:
    "Apart from the exceptions which have been mentioned, it is
    going too far to say that the time alleged in the indictment
    may become an element of the offence. Rather the correct
    view is that the nature of the allegations in the Crown case
    may be such that the prosecution is fixed to a certain date
    and it would be wrong to countenance any departure from that
    point when it is especially relevant to proof, alibi or the
    like."

35. That date or period of time which is particularised may well become material in the context of the forensic issues as they develop at a trial. As Myers CJ said in R v Dean (1932) NZLR 753, at p761:
    "True, the date specified in the indictment is not material,
    but if it is sworn to that the alleged offence took place on
    a specific date and there is no evidence that other offences
    took place in the neighbourhood of that date it seems to me
    that the date sworn to does become essential. In other
    words, it is the date proved that is material, not the date
    specified in the indictment."

36. In the trial in the District Court the Crown was very specific in the particulars in the Information as to when the two incidents were said to have occurred. So much so that even though the trial was about incidents said to have occurred nearly nine years earlier, the accused had been told precisely when it was that he had allegedly offended. He came to Court to face the charges on that basis. The prosecution had given to him "every fair opportunity to prepare his defence to what is charged and particularised against him": per Stanley J in R v Phil Maria (1957) StR Qd 512 at p523 cited in Jacobs (supra) at p542.

37. The ability to amend the particulars at the trial to conform with the evidence may avoid injustice, particularly if the accused is granted an adjournment to investigate the new situation and make a defence as observed in Pfitzner. However, such a course was not appropriate at the first trial because the evidence did not depart from the particulars. This is simply a case where the appellant went to trial to meet specific allegations. He was entitled, if not obliged, to conduct his defence on that basis. The Crown amended the Information at the conclusion of its case to broaden by one day the period of time during which the incidents are said to have occurred. The appellant conducted the defence case accordingly. He made his choice about giving evidence. He called evidence to prove conclusively that he could not have committed the first alleged offence of rape as particularised and then closed his case. No doubt he intended to argue that as the woman was wrong about the first charge, it would be unsafe to convict him of the second count on her evidence. All the evidence at the trial had been given, only addresses remained. The Crown was permitted to amend the particulars again but not in accordance with any evidence which had been given. Presumably, the amendment was made to accommodate the thesis that the woman was mistaken in her evidence, but there was no basis in the evidence as it stood to suggest a mistake. As Mr Rofe correctly acknowledged at the resumed hearing, the evidence could not justify verdicts of guilty.

38. The appellant was denied verdicts of not guilty despite having participated in a trial on the ground chosen by the Crown which had not altered until the trial was all but over. In my view, there was no ground to declare a mistrial. The trial had been conducted according to law. The Crown sought a way of bringing the trial to an end simply because the prosecution case, expressed in clear and unequivocal terms, had been defeated by irrefutable evidence in the nature of alibi.

39. The question is whether these circumstances justified the drastic step of a permanent stay of the proceedings. It is not a question of whether the appellant raped the woman as identified by the Supreme Court Judge who confirmed the decision of the District Court Judge who dismissed the application for a stay. If that was the question all proceedings should continue so that the jury could discharge its constitutional function and reach a verdict.

40. I think it was unfair, unjust and oppressive to put the appellant on trial again to meet a change of story of the woman. It may be that she had expressed to the solicitor prior to the trial some confusion about her age at the time the alleged rapes are said to have occurred, but she expressed no such confusion in her evidence which conformed with the particulars. Her story only changed when it became known that the appellant could not have committed the first offence as alleged because he was in gaol. If the trial had proceeded to completion, the accused would have been acquitted. In the circumstances it was unconscionable that there should be a second trial. As was observed by Richardson J in Moevao v Department of Labour (1980) 1 NZLR
464 at p481 and approved by Mason CJ, Deane and Dawson JJ in Walton v. Gardiner at p394:
    "... public interest in the due administration of justice
    necessarily extends to ensuring that the Court's processes
    are fairly used by State and citizen alike ... It is
    contrary to the public interest to allow (public) confidence
    (in the administration of justice) to be eroded by a concern
    that the Court's processes may lend themselves to oppression
    and injustice."

41. The appellant was obliged to fight the trial on the basis chosen by the Crown which remained throughout until the close of evidence. In my view, the same must be said of the Crown in the circumstances. It was too late to try and change the goal posts, if not the code, at such a late stage.

42. It is true that there are special difficulties for all concerned in cases where sexual abuse is alleged to have occurred many years before trial. It is often difficult to be precise about when such conduct is said to have occurred and the memory of detail may have failed. Faced with these difficulties, the prosecution often has to particularise when alleged offences occurred in a general way. There can also be special difficulties for the accused. Establishing lack of opportunity or other defences or adducing evidence which suggests that guilt is unlikely can become more and more difficult as time goes by. The elapse of a considerable period of time can be prejudicial to persons accused of such crimes.

43. It follows that special care must be taken in particularising offences of this nature. As in all cases, every effort must be made to ensure that the trial of such cases is fair. Where the particulars of offences and the evidence in support of the Crown case coincide, the Crown should, in my view, be bound by the particulars.

44. Having regard to all of the matters which must be considered in the weighing process, I think fairness to the appellant and the integrity of the criminal justice system must prevail. It was oppressive and unjust to the appellant to make him stand trial again and, in the circumstances, the continuation of the proceedings after the first aborted trial amounted to an abuse of the process of the Court.

45. Given the proximity in time between the two alleged incidents, I think the particulars of the time when the second incident is alleged to have occurred assumed great importance at the first trial and there were grounds to stay the proceedings with respect to both incidents and not just the first.

46. I have reached that conclusion on the basis that there was no impropriety on the part of the Crown. It has not been necessary to consider whether the woman did make the alleged disclosure to the solicitor and the prosecutor, although I am confident that if she did and it was understood by them, the trial would not have proceeded at that time.

47. I now turn to the second ground of appeal. I would also allow the appeal on this ground and I am able to express my reasons briefly.

48. At the trial at which the appellant was found guilty of the two counts of rape, the woman gave evidence along the same lines as her evidence at the trial before the Supreme Court Judge which was aborted. She said the first incident occurred on about 10th May 1986, the day her sister was born and the second incident occurred soon after. Her evidence was not corroborated. The appellant gave evidence and denied the allegations. It was fundamental to the Crown case that the woman was a reliable, truthful and accurate witness. If she was not, the jury could not be satisfied of the guilt of the appellant beyond reasonable doubt.

49. The appellant contends that the evidence of the woman could not be accepted for the following reasons. First, there is the evidence of Detective Copeland. On what seems to be the day when the woman first complained to the police, according to Detective Copeland she said to him that on an occasion in 1986 the appellant touched her breasts and attempted digital penetration without success. That version is very different from the nature of the sexual contact which the woman described in her statements and evidence. At the trial the woman said she could not remember this conversation. Next, there is the change of story about the job reference and the dates of the two incidents. It has been seen that the woman was adamant at the first trial that the first incident occurred three, perhaps four, days before she commenced that employment. She was not a young child when the incident is alleged to have occurred. Assuming that the incident occurred as she described, it is difficult to understand how she could mistakenly make the temporal connection between the incident and commencing employment. She claims to have made that connection through the job reference which was deliberately false in important respects and was the product of deceit. These matters, on her story, were not only known to her but she gave deliberately false evidence about them before the first District Court Judge. It seems a reasonable possibility that upon this story being shown to be false, she then linked the first incident, not to commencing employment, but to another important event, namely the birth of the sister on 10th May 1986, over a year later. The falsity of the story having been proved, the woman sought to excuse herself by implicating the solicitor and the prosecutor in the telling of the false story. The temporal connection between the first incident and the birth of her sister was not made when she gave the first statement to the police.

50. The appellant also points to her failure to complain about the incidents for such a long period of time. I do not think that the lack of recent complaint is of much significance. There can be all sorts of reasons as to why sexual abuse within the family situation is not disclosed until many years later. Nevertheless, it is a matter which must be considered.

51. In the consideration of this ground, the Court must not substitute itself for the jury and re-try the case. It must recognise that issues of credibility and reliability of oral testimony are matters for the jury: Chidiac (supra) per Mason CJ at pp443-444. However, as Mason CJ went on to say, at p444:
    "Nonetheless, occasions do arise when a jury proceeds to a
    conviction when the Crown case rests upon oral testimony
    which is so unreliable or wanting in credibility that no
    jury, acting reasonably, could be satisfied of the accused's
    guilt to the required degree. Then the appellate court must
    discharge its responsibility to set aside the conviction as
    one which is unsafe. When that happens, the court is not
    substituting its view of credibility for that of the jury;
    the court is giving effect to its conclusion that,
    notwithstanding the jury's apparent willingness to accept
    the particular witness or witnesses as credible, the
    evidence was, having regard to its nature and quality,
    insufficient to satisfy a reasonable jury of the accused's
    guilt according to the criminal standard of proof."

52. I think this is such a case. The issue of credibility which is so crucial in this case could not be resolved by the manner in which the woman gave her evidence. As Mason CJ, Deane, Dawson and Toohey JJ said in M v The Queen (1994) 181 CLR 487 at p494:
    "... a reasonable doubt experienced by the court is a doubt
    which a reasonable jury ought to have experienced. If the
    evidence, upon the record itself, contains discrepancies,
    displays inadequacies, is tainted or otherwise lacks
    probative force in such a way as to lead the court of
    criminal appeal to conclude that, even making full allowance
    for the advantages enjoyed by the jury, there is a
    significant possibility that an innocent person has been
    convicted, then the court is bound to act and to set aside a
    verdict based upon that evidence."

53. The reliability and truthfulness of the woman was compromised by her earlier evidence about the fixing of dates by the job reference for the reasons which I have given. On her own story she had given false evidence on oath and had been willing to do so. I think her credibility was so tainted by those matters that it is unsafe to rest the convictions on her uncorroborated testimony.

54. I would allow the appeal and set aside the convictions. A re-trial is obviously inappropriate. I would enter a verdict of not guilty on each count.

JUDGE2 PERRY J In my opinion, the appeal should be allowed, substantially for the reasons given by Mullighan J.

2. In doing so, I am mindful of the particular difficulties posed when a complaint of sexual misconduct is first made many years after the alleged event. In such cases, acceptance of the evidence of the complainant is made all the more difficult by the inevitable erosion of his or her recollection, particularly as to matters of detail, by the effluxion of time.

3. For the accused, the task of investigating, locating and calling evidence with a view either to establishing an alibi or otherwise throwing doubt upon matters of circumstantial detail in such cases, assumes an extra dimension of at times daunting proportions (see the observations of the High Court in Longman v R (1989) 168 CLR 79 per Brennan, Dawson and Toohey JJ at 91, per Deane J at 100, and per McHugh J at 108).

4. In this case, the first trial was conducted on the basis of precise allegations as to dates which, in fairness to the accused, must be regarded as binding on the Crown.

5. The accused met that case by evidence which would have led to an acquittal. He was denied the chance, indeed, the certainty, of that acquittal by the ruling of the learned trial Judge that there was a "mis-trial". In fact, there was no mis-trial. I must say that I am surprised that the learned trial Judge yielded to the suggestion by the Crown that there was. All that happened was that the defence case extinguished any possibility that there could be a finding of guilt on the Crown case as it had been presented and particularised in the evidence of the prosecutrix.

6. An acquittal should have been entered then and there. The accused could then have pleaded autrefois acquit to any further indictment.

7. In the events that happened, the further proceedings should have been stayed as an abuse of process.

8. In those circumstances, the convictions later entered should be set aside.

9. In my view the appeal should be allowed and this Court should direct the entry of a verdict of not guilty on each count.

JUDGE3 DEBELLE J I agree with the reasons of Mullighan J and with the order he proposes.