R v His Honour Judge Dodds, Harris & Attorney-General of Qld

[1996] QCA 402

[1996] QCA 402

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

Appeal No. 3033 of 1996

[R v Dodds and H ex parte A-G]

THE QUEEN

v

HIS HONOUR JUDGE DODDS

- and -

H

(Respondents)

Ex parte: THE ATTORNEY-GENERAL OF QUEENSLAND

(Applicant)

Fitzgerald P.

Pincus J.A.
Lee J.

Judgment delivered 18/10/1996

Separate reasons for judgment of each member of the Court, all concurring as to the orders made.

APPLICATION GRANTED.  ORDER GRANTING STAY IS SET ASIDE.  THE COUNTS THE SUBJECT OF THE INDICTMENT TO BE HEARD AND DETERMINED ACCORDING TO LAW.

CATCHWORDS:     CRIMINAL LAW - STAY OF INDICTMENT - Incest and other sexual offences and offences of violence – Complaint made to police in 1986 - No action then taken - Statement lost - Further statement made in 1994 and proceedings reinstituted - No unfairness to accused - No basis for stay.

Johannsen and Chambers (C.A. 218 and 219 of 1995, unreported, 30 April 1996), R v Judge C F McLoughlin and Cooney Ex parte: The Director of Prosecutions [1988] 1 Qd.R. 464, R v His Honour Judge Morley and Mellifont [1990] 1 Qd.R. 54, Jago v TheDistrict Court of N.S.W. (1989) 168 C.L.R. 23 considered.

Counsel:Ms L Clare and Mr Swanwick for the applicant

No appearance for His Honour Judge Dodds
Mr P Godsall for the respondent, Mr H

Solicitors:Director of Prosecutions for the applicant

No appearance for His Honour Judge Dodds
Justin Crosby for the respondent, Mr H

Hearing date:  17 September 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 3033 of 1996

Brisbane

BeforeFitzgerald P.

Pincus J.A.
Lee J.

[R. v. Dodds and H; ex p. A-G]

THE QUEEN

v.

HIS HONOUR JUDGE DODDS

and

H

(Respondent)

Ex parte: THE ATTORNEY-GENERAL OF QUEENSLAND

(Applicant)

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 18/10/1996

The circumstances giving rise to this proceeding are set out in the judgment of Lee J.  As his Honour has pointed out, a Judge of District Courts on 14 March 1996 permanently stayed proceedings on an indictment presented on 15 May 1995 in relation to offences alleged to have occurred between August 1984 and May 1986.  The accused, the present respondent, is the father of the complainant, who was aged between 13 and 15 years at the time of the alleged offences.

The District Court Judge stayed the proceeding because a statement made to police by the complainant in 1986 has been lost, and there is no satisfactory explanation concerning why the respondent was not charged at that time.  Instead, the complainant was placed in foster care by the Department of Family Services.  Before this Court, counsel for the respondent sought to sustain the stay on the basis that the absence of the complainant’s 1986 statement to police deprived the respondent of a forensic advantage.  However, it seems that there is a Department of Family Services report made in 1986 which is available, and there is no suggestion that the notes of the doctor who examined the complainant at that time cannot be found.  Further, it seems that there has been a committal proceeding, and there is no suggestion that the respondent does not have access to the depositions.  As Lee J. points out, there is also a substantial body of other material available.

In Johannsen and Chambers (C.A. 218 and 219 of 1995, unreported, 30 April 1996), I stated my opinion concerning the principles applicable to the grant or refusal of a permanent stay of an indictment.  I do not propose to repeat what I said on that occasion.  Even if there were no 1986 material available, I do not accept that there would be any significant impact upon the fairness of the respondent’s trial.  While I am conscious of the deference which should be shown by an appellate court to a decision by a primary judge in such circumstances, I am satisfied that in this instance the decision made by the primary judge is unsupportable.

Accordingly, I agree that the order staying proceedings on the indictment should be set aside and the counts the subject of the indictment should be heard and determined according to law.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 3033 of 1996.

Brisbane

BeforeFitzgerald P.

Pincus J.A.
Lee J.

[R v. Dodds and H, ex parte A-G]

THE QUEEN
v.
HIS HONOUR JUDGE DODDS
- and -
H

(Respondents)

Ex parte: THE ATTORNEY-GENERAL OF QUEENSLAND

(Applicant)

REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 18/10/1996

I have read the reasons of Lee J.  The primary judge appeared to be of the view that the circumstances practically compelled the conclusion at which his Honour arrived.  The critical passage is as follows:

"In this case in the light of the fact that the material obtained many years ago when the complaint was first made is not available and seems irretrievably lost and that nobody seems to be able to throw any light at all on why the proceedings were not instituted then I have reluctantly come to the conclusion that I should impose a stay on any further proceedings on the indictment. It is less than desirable that I find myself constrained to take that position."

The material which was lost consisted principally in a statement which was taken from the complainant in 1986.  In argument in this Court, counsel for the respondent seemed to accept that the substantial reason for the grant of a stay was the loss of that statement; that appears from the passage in the reasons which I have quoted.  The general proposition that the loss of an old statement made by a complainant necessitates a stay cannot be supported and it is unclear why his Honour thought that he was "constrained" to make the order which is now attacked.  But the line of thought may be deduced from a passage his Honour quoted from R v. Judge C F McLoughlin and Cooney Ex parte: The Director of Prosecutions [1988] 1 Qd.R. 464 at 471; having quoted that, the judge said "I add that includes justice to all parties and to the community also" and then went on to make the statements I have quoted above. The passage from Cooney’s case need not be fully set out here, but it includes the following:

"The authorities establish that the principal concern is that there be a fair trial and whether in the circumstances an accused person has been prejudiced by reason of events flowing from the actions of a prosecuting authority".

Here, it was argued in effect that these remarks applied; Mr Godsall, for the respondent, relied on the possibility that the lost statement or parts of it would have assisted the respondent’s case, at a trial.  He also pointed to the fact that no proceedings were brought in 1986, as relevant to the likelihood that the statement then taken was in some way unsatisfactory.  It may be that considerations of this sort convinced the primary judge that the respondent was "… an accused person [who] has been prejudiced by reason of events flowing from the actions of the prosecuting authority", within the meaning of the dictum set out above.

If investigation of the matter in 1986 had produced evidence as substantial as that which is summarised in the reasons of Lee J. and which appears to be presently available, it is difficult to understand why no prosecution was brought.  A reason, as counsel for the respondent stressed, may have been some aspect of the statement then taken from the complainant; but for all one knows the failure to proceed may have been simply due to incompetence.  If the case proceeds to trial, counsel for the respondent will presumably, if that is thought an advantageous course, draw attention to the fact that no prosecution was brought in 1986, although a statement was then taken from the complainant.

The notion that the loss of the 1986 statement in any sense constrained (although reluctantly) the grant of a stay must in my opinion have arisen from some misapprehension as to the scope of the Court’s discretion, the exercise of which was sought.  The loss by the police of the statement was merely a basis, taken with the other circumstances relied on by the respondent, on which the Court might consider whether a stay was warranted.

Of course it is possible that the lost statement contained nothing which could have assisted the respondent; whatever its content was in fact, counsel for the respondent is likely to be able to gain some forensic advantage from the loss, at a trial.  The possibility that, were the statement not lost, even greater advantage might have been gained, does not, in the circumstances of the present case, fully set out by Lee J., constitute a matter which could justify let alone compel the grant of a stay.  Although the precise nature of the approach which led the primary judge to adopt the conclusion I have quoted is not clear, what is clear in my respectful opinion is that his Honour fell into error; I accept the contention that the error was one of law: see R v. His Honour Judge Morley and Mellifont [1990] 1 Qd.R. 54 at 62, 63. In my view it should be ordered that the order made below for a stay be set aside and that the indictment be tried according to law.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane Appeal No. 3033 of 1996

BeforeFitzgerald P.

Pincus J.A.
Lee J.

[R v Dodds and H ex parte A-G]

THE QUEEN

v
HIS HONOUR JUDGE DODDS
- and -
H

(Respondent)

Ex parte: THE ATTORNEY-GENERAL OF QUEENSLAND

(Applicant)

REASONS FOR JUDGMENT - W.C. LEE J.

Delivered the 18th day of October, 1996

On 14th March 1996 a trial was due to begin in the District Court at Maroochydore, charging the respondent with five counts of incest, three counts of assault occasioning bodily harm whilst armed with a dangerous weapon, three counts of common assault, one count of assault occasioning bodily harm and one count of indecent treatment of a girl under the age of 16 years.  The complainant in all cases was his daughter who was born on 20th May 1971.  At the date of the scheduled trial she was 24 years of age.  All offences were alleged to have occurred between August 1984 and May 1986 when she was aged between 13 and 15 years.  The committal occurred on 15th and 16th March 1995 and 15th April 1995.  The indictment was presented on 15th May 1995.

Before arraignment on 14th March 1996, an application was made on behalf of the respondent to permanently stay the indictment.  His Honour granted the application and ordered a permanent stay in the following terms:-

"In this case in the light of the fact that the material obtained many years ago when the complaint was first made is not available and seems irretrievably lost and that nobody seems to be able to throw any light at all on why the proceedings were not instituted then I have reluctantly come to the conclusion that I should impose a stay on any further proceedings on the indictment.  It is less than desirable that I feel myself constrained to take that position.

I order that the proceedings on the indictment be forever stayed."

The Attorney-General now applies pursuant to an order nisi granted by Shepherdson J. on 8th May 1996 under s.30 of the District Courts Act 1967, calling on the learned District Court judge and the respondent to show cause why His Honour should not hear and try according to law, the foregoing matters.

The material placed before this Court is deficient in some respects.  There is no Family Services report in 1986 which is said to be available.  Nor is there any statement from the doctor who examined the complainant in 1986, as to his opinion, if any, formed at that time.  The depositions were not tendered before the trial judge and were not placed before this Court.  There is however other extensive material.  Exhibited to the affidavit of Joanna Hughes is material obtained from a search of the file in the office of the Director of Public Prosecutions.  This is the material which the deponent verily believes was tendered at the committal and was therefore before the judge on 14th March 1996 as follows:-

(a)A 37 page statement dated 11th October 1994 by the complainant in which she gave a very detailed account of serious sexual conduct and acts of violence committed on her by the respondent which commenced whilst the family lived in Melbourne and some years before the specific incidents alleged in the indictment, and continued in Queensland until May 1986 when she was placed in foster care.  She said she confided with a school friend at IH that her father was having sexual intercourse with her and that he had beaten her.  She said that at times she did not go to school because of the respondent's treatment of her.  She recalled 16th May 1986 which was just before her birthday when an incident occurred involving a girlfriend after which she alleged that sexual intercourse and assaults occurred that evening and again the next day after the threats that the respondent was going to kill her.  Next morning apparently 18th May 1986, he told her that that was the last day that she was to attend the T.A.F.E. college.  At T.A.F.E. she started to cry and a teacher named Mrs Bell approached her and asked her what was wrong, when she disclosed that she had been assaulted all weekend.  She was taken to the principal's office and saw two ladies from the Department of Family Services as well as the principal.  These ladies saw extensive bruising on her body and considered it unsafe for her to go home.  As a result of observing her father and mother being interviewed and hearing her father say that she was his daughter and he could do whatever he wanted with her, she then complained to the principal that not only did her father beat her but also had sexually abused her.  She said that her current statement was much more detailed than the statement that she had given to a female police officer at the IH Police Station in 1986.  She said she was medically examined by a male doctor and placed in foster homes.  She said she visited her parents when she was 18 or 19 years of age and told her mother that her father had abused her.  In 1993 she again saw her parents at Maroochydore and also on 24th August 1994 after she had approached the police about her complaint.

(b)A statement by Solan Ming Chong dated 8th August 1994.  She was then 22 years of age and confirmed her friendship with the complainant at the NI Primary School and during grades 9 or 10 at the IH High School.  She recalled seeing bruises on her face and legs and that the complainant confided in her about the sexual and physical abuse when they started high school.  She said that on occasions the complainant told her she could not come to school because of assaults and sexual abuse of her by her father.

(c)A statement by Laurel Rosa Bell dated 8th August 1994.  She was a commerce teacher at the IH College of T.A.F.E.  She said that in May 1986 the complainant was enrolled in a number of her classes and confirmed the complainant's complaint of physical beating by her father.  She met the respondent on a number of occasions and recalled seeing him a number of times at the college waiting for the complainant's classes to finish during the school day.

(d)A statement by Jane Louise Thorpe dated 24th October 1994.  She was employed at the Department of Family Services from 1983 to 1992 and confirmed attending with Deirdre Hales, a child care officer, upon the complainant in the presence of a staff member of the T.A.F.E. college.  A complaint was made to her about physical abuse by her father and her fear of returning home.  Ms Thorpe has no other recollection of the details of the incident notwithstanding that she has read the file.

(e)A statement by Deirdre Ann Mulkerin dated 8th August 1994.  She recalled attending upon the respondent in May 1996.  She was a child care officer at that time.  She attended with Jane Thorpe at the IH T.A.F.E. College.  She also spoke with the principal Mrs Agnes Cable.  The complainant complained about physical abuse.  She observed bruising and that the complainant was frightened and shaking.  Later that day Ms Mulkerin met the respondent and his wife.  The respondent admitted that the complainant was bad and cheeky and deserved the beatings.  He said he disowned his daughter.  Ms Mulkerin arranged for Dr John Taylor to examine her.  The next day 20th May 1996 she received a call and attended IH T.A.F.E. where the complainant told her that her father had been sexually abusing her for years.  The complainant told her of sexual abuse for several years and of incidents over the previous weekend.  She was further examined by Dr John Taylor at the IH Hospital.  Ms Mulkerin was present.  The next day she spoke to the respondent and his wife and he denied any allegations of sexual abuse.  She arranged for numerous foster homes for the complainant.

(f)A statement by Agnes Mary Ula Cable dated 21st July 1994.  She recalled the first semester of 1986 when she was a senior technical teacher at the IH College of T.A.F.E.  A member of the staff brought the complainant to her office saying that the complainant had serious matters which she wished to report.  The complainant alleged sexual abuse by her father since the age of six.  After consulting with the student counsellor, Mrs Cable arranged for the complainant to stay at her home until a foster home could be arranged for her.

(g)A statement by John William Taylor, medical practitioner dated 10th August 1994.  He confirmed the physical examination of the complainant on 19th May 1986 and the sexual examination on 20th May 1986.  His notes were exhibited to his affidavit but as indicated there is no opinion expressed by him as to what his views were at that time or whether he is now able to express an opinion.  He observed bruising on 19th May 1986 on various parts of the body and on 20th May 1986 he recorded that he examined her because of complaints relating to incest over three years.  The sexual offence medical protocol was attached, the only relevant note being that the urethra easily admitted the speculum with no pain which the applicant submitted was consistent with previous sexual penetration.  Samples taken were analysed.

(h)A statutory declaration by Kenneth Joseph Cox dated 20thOctober 1994 referring to his analysis of samples, with the conclusion that two or three days after normal ejaculatory intercourse and the taking of a high vaginal swab is usually the maximum time the spermatozoa can be detected.  These samples had been taken on 20th May 1986 and the alleged last previous act of intercourse had occurred some days earlier.

1. A statement by Melvyn White dated 28th October 1994.  Mr White is a Detective Senior Constable of police.  He confirmed that on 20th May 1986 he received a complaint from the Children Services Department concerning the complainant.  He also stated that Senior Constable Ryan, a female police officer attached to the police station, obtained a statement from the complainant on that day.  He also confirmed that the complainant was conveyed to the IH Hospital for a medical examination and that specimens were obtained by way of vaginal swabs.  He also said that later that evening he interviewed the respondent regarding the complainant's allegations and said, "At that time there was insufficient evidence to prefer any charges against Mr H", i.e. apparently on 20th May 1986.  He then said that the vaginal swabs were delivered the next day for examination.

When the matter came before the learned District Court judge, the complainant's statement in 1986 was unable to be found and Ms Ryan, who had left the police force, had no independent recollection of its contents.  The police file had been lost and could not be found.  Detective White could recall only that the complainant's statement concerned incest.  Records of the complainant's attendance at school at IH at relevant times had been destroyed in a fire.  Evidence was given of a medical condition of the respondent suggesting there was a possibility of heart attack during a strenuous trial.

During argument (18) His Honour said:-

"My major concern is the lack of the material that was brought into existence back in 1986 and the length of time that's elapsed since. I'm not even particularly concerned about the health of the accused man. I don't think that's a definitive issue."

In his decision His Honour referred to the horrific account of abuse by the respondent, the fact that the respondent's health was not decisive, and that mere delay did not require a stay.  His Honour properly referred to the interests of community as well as that of the respondent in obtaining a fair trial and reverted to the missing statement.

He said:-

"There may be a number of explanations why the matter was not proceeded with at the time, some of which may be relevant to the question of guilt; others of which may not be. If there are, or were, explanations which may be relevant to the question of guilt they are not now available to the accused man because, in part, of the lapse of time."

After referring to various authorities, His Honour said he felt constrained to make the above order permanently staying the indictment.  His Honour was obviously concerned about the lost statement and because no one, due to lapse of time, could throw any light as to why the investigation did not further proceed at that time.

It was submitted on behalf of the respondent that given that the police officer had decided there was insufficient evidence to proceed in 1986, there may well have been versions in the missing statement by the complainant which were totally at odds with her current stand and which may have explained the decision not to proceed.  It was further submitted that it would be unfair for the trial to proceed because the respondent would now be unable to test any possible inconsistent statements.  It was conceded however that the respondent's case for a stay depended only on that point as well as the respondent's inability to check any possible inconsistencies which might have appeared in the school records if they did not tally with the times when she said she was away from school due to the respondent's conduct.  No other prejudice was pointed to.  There was no suggestion of any missing witnesses or that the respondent would be deprived of alibi evidence.  The complainant's mother was present during some of the incidents, particularly those involving physical abuse and could be called if necessary.  The onus of proving that a stay be granted was on the respondent.

Counsel for the applicant submitted that the exercise of the discretion to grant the stay was based upon a misunderstanding of the evidence or irrelevant considerations and that His Honour's reference to a number of possible explanations was erroneous.  The evidence showed that the matter did not proceed because the police were of the opinion that the evidence was insufficient and this showed a probable belief that the complainant's uncorroborated statement was insufficient to warrant the matter proceeding at that stage.  There was no suggestion that there was any information beyond the versions of the complainant and the respondent.  The medical records and Family Services file were still available as well as all relevant witnesses.  There was no suggestion of any retraction by the complainant who was taken into care until she was 18 years of age, and there were no suspicious circumstances surrounding the disappearance of the statement.  There was adequate evidence of recent complaint which indicated a consistency with allegations contained in the 1994 statement.  It was further submitted that the loss of the earlier statement did not deprive the respondent of a fair trial, the matter being one of credibility of a complainant which the respondent was able to exploit at the trial including suggestions to the jury that the missing statement might have contained possible inconsistencies.

It is clear from the decision of the High Court in Jago v The District Court of New South Wales (1989) 168 C.L.R. 23, that a permanent stay should be ordered only in extreme cases and that the making of such an order upon the basis of delay alone would be very rare. Indeed it was not suggested on behalf of the respondent that delay was a factor in the present case. Mason C.J. at 34 said that to justify a permanent stay there must be a fundamental defect which goes to the root of the trial of such a nature that nothing that the trial judge can do in the conduct of the trial can remove its unfair consequences. The facts do not disclose an "extreme" case. Nor is there any feature "as to which a court could be satisfied that the proceedings were thereby rendered so unfair that they were insusceptible of remedy by less drastic means": Jago per Gaudron J. at 78. There was no deliberate delay on the part of the prosecution and no conduct on behalf of the prosecution which would render the continuation of the proceedings unfair. Nor is the continuation of the proceedings an abuse of process where the process is used only for the purpose of hearing and finally determining whether the accused has engaged in conduct which amounts to an offence and on that account deserving a punishment: Jago per Brennan J. at 47. The issue is one of credibility only which can be properly tested at trial.

The decision to grant a stay is a result of an exercise of a discretion which is circumscribed by the authorities.  The learned judge erred in concluding that he felt himself constrained to make the order he did.  The order granting the stay is set aside.  The matter should proceed according to law.