R v HATTON
[2007] SADC 35
•3 April 2007
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HATTON
[2007] SADC 35
Ruling of His Honour Judge Chivell
3 April 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS
Stay of proceedings - applicant charged with rape and false imprisonment - alleged offences occurred in January 2001 - applicant gave details of alibi in inerview with police in March 2001. Alibi witnesses and other witnesses mentioned by applicant not interviewed. Charged in March 2001 but no evidence tendered in June 2001 and Information dismissed. Information re-laid in August 2003. Applicant arrested in August 2004 and extradited from Darwin. Witnesses cannot now be located. In the circumstances, fair trial on the evidence not possible. Application for a stay granted
R v Penney (1998) 155 ALR 605 at p609; Jago v District Court (NSW) (1989) 168 CLR 23 at 33, applied.
R v Goldburg NSW CCA unreported (BC 9302038), distinguished.
R v HATTON
[2007] SADC 35
This is an application pursuant to Rule 8 of the District Court Rules for a stay of the information on the grounds that the proceedings are an abuse of the court’s process.
The accused is charged on an Information, dated 11 July 2005, with:
·False Imprisonment in that between 26th day of January 2001 and the 29th day of January 2001 at Elizabeth Downs, you unlawfully imprisoned Teresa Majella Ramanauskas and detained her for about 11 hours against her will.
·Between the same dates he had vaginal sexual intercourse with Ms Ramanauskas without her consent.
The Crown Case
It is alleged that the relevant events commenced on the evening of 26 January 2001. The accused and Ms Ramanauskas lived together at 39 Midlow Road, Elizabeth Downs as de facto partners. A younger man called Michael also lived at the house. On the evening of 26 January 2001, Michael, the accused and Ms Ramanauskas went across the road to the house of a friend called Lola.
At about 1.00am the following morning, the accused went home. Ms Ramanauskas said she was “getting really drunk”. The accused kept coming over and asking her to come home. She did not.
At about 4.00am, the accused came over again and an argument developed in which the accused accused her of “doing things” with Michael. The police were called and told the accused to go home and Ms Ramanauskas stayed at Lola’s house.
The following morning she went home, there were further arguments, the police were called and removed the accused. Ms Ramanauskas and Michael went out, and she returned alone. Michael stayed at a friend’s house.
At about 4.00pm on 27 January 2001, the accused kicked the back door open. He began abusing her again, accusing her of being unfaithful and then he began assaulting her. She said that he would sit on her while she was lying on the bed for sessions of about an hour at a time. At one stage the telephone rang and he answered it and told her daughter, Kerrie, that he was holding her prisoner and that she was his hostage. He allowed Ms Ramanauskas to talk to her daughter, and she also spoke to her other daughter, Melissa, and then another lady called Judy Friend. She spoke to them for a total of about one and a half hours. The accused then commenced assaulting her again, keeping her prisoner in the bedroom.
She said he assaulted her in various ways and threatened to kill her in various ways.
During the night they had sexual intercourse without her consent.
Some time later, the accused left the bedroom and went into Melissa’s bedroom and stayed there for the rest of the night.
The following day, at about 8.30 that night, Ms Ramanauskas caught a bus to Melbourne, arriving on the morning of Monday, 30 January 2001.
She went to the Emerald Police Station and “told them about what Jim had done to me”. She later went to a doctor’s surgery in Emerald, who noted her various injuries.
Some time later, Ms Ramanauskas returned to Adelaide where she had contact with a worker from a woman’s shelter who put her in touch with the police and she was referred to the Sexual Assault Unit and provided a statement. This statement was taken on 13 February 2001, although it was not signed until 23 September 2003.
In a later statement, dated 26 August 2005, Ms Ramanauskas clarified that during the evening of 26 or morning of 27 January 2001, the accused became particularly angry because she and Michael had been in the toilet and that the accused thought she had been giving him oral sex. She said that she was injecting him with amphetamine.
The Investigation
On 16 March 2001, Senior Constable Fatchen of Elizabeth CIB was tasked to investigate this matter. Her regular partner was unavailable so she called upon Senior Constable Scutchings to accompany her to 39 Midlow Road, Elizabeth Downs, where they spoke to the accused and arrested and conveyed him to the Elizabeth Police Station where he was interviewed and subsequently charged.
There is a document which purports to be a transcript of an audio tape recording of the interview on file. I understand that the interview was both video and audio taped. I am informed that both the video and audio tapes have been lost and cannot be produced. The written transcript has not been verified by either of the police officers present. It is not my task to decide the admissibility of the transcript of interview at this stage of the proceedings. However, it is relevant to the purposes of this application a number of respects. The following comments are based upon the assumption, for the purpose of this ruling, that the transcript is an accurate record of the conversation.
The accused answered the questions put to him by the police officers. He denied the allegations made by Ms Ramanauskas. He said that after he was taken away from the house by the police, he did not return for a couple of days. He said he went to Freeling and stayed with friends, and gave their names as Hench Eggleton and Penny Nichol. The police did not ask for any further information about these two people. He said that the day he returned to the house was the day Ms Ramanauskas left for Melbourne to pick up her children. On his account, he was not in the house at the time the alleged assaults and imprisonment occurred, and he gave the police an alibi at that point.
He also told the police that the Aboriginal lady in the house, whose name he did not know (presumably this was Lola referred to by Ms Ramanauskas), could confirm that Ms Ramanauskas had been giving oral sex to Michael. He told them that he thought her address was 40 Midlow Street.
The accused told the police that when he returned to the house on the Sunday, he told Ms Ramanauskas that he wanted to terminate their relationship and that she became angry and violent and began throwing herself at him. He told them that she slipped on the front porch and landed on her behind and that this may have accounted for some of the bruises.
The interview concluded with the accused inviting the police to come to the house and have a look in the back yard. He says that they could have verified the lack of damage to the back door if they had done so, but they did not.
It would appear that none of these lines of inquiry were followed up at the time. No attempt was made to locate the two people at Freeling nominated by the accused as being able to provide an alibi for him. No attempt was made to interview Lola or Michael or anybody else as to the events of the evening and day in question.
It would appear that Senior Constable Fatchen went on leave in early April 2001, and eventually resigned from the police force in October 2001.
The accused first appeared in the Elizabeth Magistrates Court on 28 March 2001, but the police were obviously in difficulty because they had no signed declaration from Ms Ramanauskas. It would appear that several attempts were made to contact her, without success, and eventually, on 6 June 2001, no evidence was tendered on the Information and the proceedings were dismissed. There is no evidence before me as to why Ms Ramanauskas was unavailable to the police at this time. The only clue is in her comment in a statement, dated 26 August 2005, as follows:
Another aspect that I have been asked to address is the contact with the police and the DPP since the incident. All I can say about that is that I have wanted to go ahead with the matter the whole time. I was never deliberately unco‑operative with the police and I never failed to keep appointments. I might have said when I got to Tasmania that I did not want to proceed with the matter but I can’t really remember. I think I did ring South Australia Police at one stage and provide them with my new contact details. I know that I do want to proceed with it now.
This does not sit well with the notes in the file from Senior Constable Fatchen to the effect that Ms Ramanauskas had an appointment to come and see her and failed to keep it.
On 23 October 2001, more than four months after the proceedings had been dismissed, Ms Ramanauskas contacted the police to enquire as to progress. She contacted them again on 30 July 2002, and the investigation was re‑started. I was told that on 8 April 2003, a decision was made to re‑lay the Information, although it was not lodged in the Magistrates Court until 13 August 2003. The reason for the delay is not explained.
The Information and Summons was served by post. The accused says that he did not receive it. In any event, since he did not attend court, a warrant was issued for his arrest on 1 October 2003, and on 25 August 2004 he was arrested in Darwin. On 24 November 2004, he was extradited from Darwin and on 25 November 2004 he was granted bail in the Magistrates Court.
On 8 June 2005, he was committed for trial, and on 11 July 2005, he first appeared in this court, was arraigned, and pleaded not guilty.
The matter was originally listed for trial on 1 August 2006, but on the day before trial the Rule 8 Application was lodged, along with an affidavit of the accused which was heard by Judge Clayton that day. His Honour adjourned the trial to allow several outstanding matters to be investigated, granted a temporary stay of proceedings, and there have been several adjournments since that time until the matter came before me on 22 February this year. The trial has not been re-listed.
It is obvious that these proceedings have taken a most unsatisfactory course. If I refuse this application for a stay, it is unlikely that there will be a trial of this matter until early 2008, approximately seven years after the alleged events.
The Application For A Stay
Mr Mancini submitted that a stay should be granted because it is no longer possible for his client to have a fair trial. He pointed out that after the Information was dismissed in June 2001, his client was entitled to assume that he was no longer at risk, and that there was no need for him to further investigate the matter until he was arrested in August 2004, more than three years later.
Since that time, enquiries which have been made by the police, and which should have been made in early 2001, have revealed that the alleged alibi witnesses cannot be located, nor can either Michael or Lola. Of course it is true, as Ms Lam, counsel for the Director of Public Prosecutions, submitted, we do not know whether these witnesses would have supported or contradicted the story given by the accused. In the case of the alibi witnesses, an investigation at the appropriate time would have either confirmed his alibi, in which case the proceedings may never have gone ahead, or failed to confirm it, in which case the accused could no longer claim prejudice.
As things stand, I am of the opinion that this failure to properly investigate these allegations at or around the time they occurred, has severely prejudiced the accused’s right to a fair trial. It is to be noted that the Information is not specific as to the date on which these alleged offences occurred, referring to “between the 26th and the 29th day of January 2001 inclusive”. The inability of the accused to produce alibi evidence, notice of which he gave to the police in March 2001, is a very important matter. The fact that the witnesses, Michael and Lola, were not located and interviewed is a serious lapse, and the lack of even a basic forensic examination of the premises, even insofar as an inspection of the back door to check on the allegation that the accused “kicked it in” is a less serious lapse.
It is not for me to apportion blame as to how these lapses occurred. It is unclear from the material before me whether it resulted from an intimation given by Ms Ramanauskas that she did not wish the matter to proceed, or disorganisation or ineptitude on the part of the police. In my opinion, it is not necessary to determine that. The issue is not whether a stay should be granted in order to signal the court’s disapproval of inadequate investigation. The issue is whether it is now possible to give the accused a fair trial.
Ms Lam referred me to the comments of Callinan J in R v Penney (1998) 155 ALR 605 at p609 where his Honour said:
..... even though a better investigation may, and probably should have, been conducted, there is no general proposition of Australian law that a complete and unexceptional investigation of an alleged crime is a necessary element of the trial process, or indeed of 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. (emphasis added).
However, as Ms Lam also submitted, to proceed with the trial in circumstances where it is impossible for the accused to receive a fair trial would amount to an abuse of process. Where it is alleged that the accused cannot be tried fairly, it must be demonstrated that real and substantial unfairness or prejudice exists. Presumptive prejudice is insufficient. There is no power to grant a stay on the ground of presumptive prejudice. (Jago v District Court (NSW) (1989) 168 CLR 23 at 33 per Mason CJ, 62 per Deane J, 71-72 Per Toohey J, 78 per Gaudron J).
I also agree with the written submission of Ms Lam:
Where it is alleged that the accused cannot be tried fairly it must also be demonstrated that the suggested unfairness cannot be negatived in the sense that there are no means available (such as appropriate directions) to overcome the particular difficulty said to give rise to unfairness. A permanent stay may only be granted where there is 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’”.
Jago v District Court (NSW) (ibid) at 34 per Mason CJ, 46-47, 49 per Brennan J
Williams v Spautz (Ibid) at 436-437 per Mason CJ Dawson, Toohey & McHugh JJ
Barton v R (Ibid) at 111 per Wilson JMs Lam submitted that although it is acknowledged that the investigation was less than satisfactory, the accused is still able to receive a fair trial since any of the defects in the investigation can be highlighted by counsel for the defence, and can be the subject of a specific direction to the jury. I do not accept that submission. The deficiencies in the investigation are not curable by direction. The prejudice to the accused resulting from the inadequacy of the police investigation is so great that a fair trial on the basis of it is inconceivable. In my opinion, to commence a trial on the basis of the prosecution case would be to allow an abuse of the process of the court.
Ms Lam referred me to R v Goldburg, an unreported decision of the New South Wales Court of Criminal Appeal (BC9302038) on 23 February 1993. In that case, the mother of the accused, who might have given alibi evidence, was unable to do so because of a medical condition she had suffered by the time of trial. There was no suggestion of undue delay or other similar factor. The Court of Criminal Appeal upheld the refusal of a stay without giving reasons other than that a stay was not justified in the circumstances. I do not regard that decision as authority for the proposition that a stay is not justified in these circumstances.
In forming that conclusion, I do not overlook the other elements of the prosecution case which Ms Lam submits support the evidence of the accused, particularly the evidence of the telephone conversations alleged to have occurred between Ms Ramanauskas and her daughters at some stage during the alleged false imprisonment. However, these conversations cannot be fixed in time by the telephone records that have been produced. The unavailability of the alibi evidence therefore becomes even more important.
I recognise that there is a presumption in favour of the proposition that once the court’s jurisdiction is invoked, the proceedings should continue and that the power to order a stay is extraordinary, should be approached with caution and should only be exercised in rare and exceptional circumstances. The interests of the community in the proper prosecution of crime should be balanced against the interests of the accused who is entitled to receive a fair trial. These are clearly serious charges. Of course, no matter how serious the charge is, an accused person is entitled to a fair trial, but where the charges are serious it is even more imperative it is that the accused should receive a fair trial.
In those circumstances, I consider that I have no alternative but to order that the proceedings be permanently stayed.
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