R v His Honour Judge Kimmins, Hicks; ex parte

[1996] QCA 194

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	App. No. 103 of 1995
[R v Kimmins and Hicks ex parte A-G]

T H E Q U E E N

v

HIS HONOUR JUDGE KIMMINS

- and -

JAMES CLARENCE HICKS

(Respondents)

Ex parte: THE ATTORNEY-GENERAL OF QUEENSLAND

(Applicant)

Davies J.A.
McPherson J.A.

Fryberg J.

Judgment delivered 21/06/1996

Judgment of the Court

APPLICATION DISMISSED WITH COSTS

CATCHWORDS:	Criminal law - Practice & procedure - Stay of proceedings - Abuse of process - Whether voir dire should have been conducted.
Counsel:	Mr M Byrne Q.C. for the applicant No appearance for His Honour Judge Kimmins Mr A. J. Glynn for the respondent Hicks
Solicitors:	Director of Prosecutions for the applicant Legal Aid Office for the respondent Hicks
Hearing date:	14 August 1995
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	App. No. 103 of 1995
Before Davies J.A.

McPherson J.A.

Fryberg J.

[R v Kimmins and Hicks ex parte A-G]

T H E Q U E E N

v

HIS HONOUR JUDGE KIMMINS

- and -

JAMES CLARENCE HICKS

(Respondents)

Ex parte: THE ATTORNEY-GENERAL OF QUEENSLAND

(Applicant)

JUDGMENT OF THE COURT

Delivered the 21st day of June, 1996

On 20th February 1995 counsel for the Crown sought the arraignment of the present respondent ("the accused") in the District Court on an indictment charging five counts of indecent dealing and six counts of rape. The indictment had been presented some five months earlier. Before the accused was arraigned counsel applied on his behalf for a permanent stay of the proceedings. Argument ensued, the upshot of which was that that afternoon, the Court made the order sought. The Attorney-General ("the applicant") now applies pursuant to s.29 of the District Courts Act 1967 for an order directing the learned trial judge to hear the matter according to law.

The power to stay criminal proceedings as an abuse of process is now well established in Australia1. A decision whether or not to exercise the power involves the exercise of a discretion, and it is a wide discretion2. No substantial argument was advanced to us that on the material before the learned trial judge His Honour's discretion miscarried. It is difficult to see how any such argument could have been mounted. His Honour referred to the relevant authorities, considered the evidence before him and applied the law to it. As counsel for the applicant very properly conceded, he would have difficulties in his submissions if there were not more to it than that. On that point the present application should fail.

However counsel for the applicant contended that the proceedings in the District Court miscarried because the judge did not have all of the relevant material before him. Counsel submitted that His Honour should not have proceeded to decide the application only on the material put before him, but should have embarked upon a voir dire. It was submitted that this obligation arose from the nature of the circumstances placed before His Honour, even if it was not sought by the prosecution; although, it was submitted, the Crown Prosecutor had in fact submitted to the judge that a voir dire should be held. The reason why a voir dire was said to have been necessary was that, given that delay was one of the factors relevant to the exercise of His Honour's discretion, further evidence was necessary to enable the reasons for the delay to be assessed. To explain these submissions it is necessary to refer to some of the evidence and the course of proceedings in the District Court.

The application for a stay was made orally and before arraignment. Practically no advance notice of the application was given to the Crown Prosecutor. In making the application, defence counsel handed written submissions to His Honour. He also handed His Honour:

(a)         a statement of the accused's daughter dated 17th February 1995;

(b)        an affidavit made by the complainant in relation to Family Court proceedings in 1987;

(c)         a handwritten statement made by the complainant on 15th December 1993; and

(d)        a statement made by the complainant to the police on 20th December 1993 with an addendum to that statement.

Although none of these documents was formally made an exhibit by His Honour, they, together with the transcript of the committal proceedings, apparently furnished the factual basis upon which counsel subsequently founded their submissions and His Honour made his decision.

The material disclosed that 10 of the 11 offences were alleged to have been committed between 16th October and 31st December 1965, with the eleventh allegedly committed on 14th April 1969. The complainant ("C") was born on 27th May 1953 and thus was about 12½ at the time of all but one of the alleged offences and almost 16 at the time of that one. The accused was born in 1939 and thus was 25 in 1965. At that time he was the boyfriend of C's 19 year old stepsister, whom he subsequently married. The first 10 offences were said to have occurred during a period of weeks while C's father and stepmother were away from home, but while C's stepsister, her two brothers and another sister, all of whom were older than she, were living at home. C said nothing of the alleged offences to any of them, nor to her parents when they returned. She alleged further acts of indecent assault and/or rape over the next three years, but none of these was particularised. These acts were alleged to have been induced by threats and intimidation.

In December 1968, aged 15½, C moved to Sydney to live with her natural mother and one of her sisters. She continued to live in Sydney until 13th April 1969. Apparently she said in her statements3 that although she left Brisbane to get away from the accused, during the time in Sydney she somehow became confused and formed the view that she was in love with him. She started sending postcards to him and in February 1969, when he was in Sydney, there was "an act of consensual sex" between them. On 13th April, the day after her sister's wedding in Sydney, she returned to Brisbane.

Upon her return she went to live with the accused and her stepsister, who were by then married. Count 11, which charges rape, refers to an incident which allegedly took place the following day. Thereafter she continued to live with the accused and her stepsister until about the end of 1970. She alleged that during this period she and the accused regularly had sex, although she "did not like what was happening". At about the end of 1969 or 1970 (it is unclear which), she moved into a flat with three girls. Subsequently she moved to another flat with other girls. She said that the accused visited her while she was living in these flats and they had sex. She claimed that for the whole of the period from April 1969 to May 1971 her consent to sex was gained by threats or what she described as blackmail.

In May 1971, shortly before her 18th birthday, C attempted suicide. At the committal proceedings she agreed that the reason for the suicide attempt was that a named woman who was "a dear friend" had left her. About a week later, she moved to New Zealand. From that time on she had no further physical or verbal contact of any consequence with the accused.

Later that year, C married. Her first child was born in June 1973. Subsequently she had at least one more child. She returned to Brisbane in about 1980. Her stepsister and the accused also had children. However it seems that in the mid-1980's their relationship soured and the stepsister approached C to provide evidence in child custody proceedings against the accused. In 1987 C swore an affidavit for that purpose and in it she made allegations of some at least of the matters alleged in the indictment.

A couple of months later C became involved in some sort of altercation with the accused's eldest daughter. According to C the police were called and she then told them that she had been raped by the accused and that he was a child molester. At the committal proceedings she said she did not go back to the police station to make an official complaint. She did make such a complaint on 14th December 1993, when she was over 40 years old. It does not appear from the material before us whether the complaint was triggered by any particular event.

Committal proceedings ensued in mid-1994.

Not surprisingly, delay in the commencement of the proceedings was an important factor in the arguments in the District Court and in the reasons which His Honour gave for his decision. In accordance with Jago, attention was necessarily directed to the reasons for the delay. Since the proximate cause of the delay was C's failure to make a formal complaint until December 1993, attention was paid to the reasons which she advanced for that omission. She gave three reasons for failing to complain earlier:

(a)         she wanted to delay until her children were old enough to understand;

(b)        she wanted to wait until the accused's children had left home to avoid distressing them; and

(c)         the accused and his wife were divorced in 1986.

The learned District Court judge found that the explanation for the delay was the fact that C consciously chose at a time when she was not under the influence of the accused to make no complaint about the alleged offences. Although it seems that C did not expressly assert that her failure to complain was at any time due to her being under the influence of the accused, it seems implicit in His Honour's attention to the period after she went to New Zealand that he took this possibility into account in respect of the period up to 1971. He observed that more than 22 years elapsed between when she went to New Zealand and when she made the complaint. For the last 13 of these years she was working in Brisbane. From 1980-1984 she worked as a legal secretary in a firm of solicitors, she managed a restaurant from 1984-1988 and from about 1988 to the committal in 1994 she worked as a paralegal. On 6th December 1991 she remarried and her new husband was a former police officer. His Honour found that it could not be said in any way that she lacked access to legal advice. He also referred to the fact that on 15th December 1993, the day after her formal complaint to the police, she made a bankruptcy search of the accused in order to obtain his address. His Honour found, "...one cannot refer to her as not having the means or some knowledge of affairs legal". His Honour then assessed the reasonableness of the delay and balanced it against the prejudice which it caused to the accused (to the details of which it is unnecessary to refer).

The primary argument advanced to us on behalf of the applicant was that the learned District Court judge ought not to have made such a finding without hearing oral evidence from the complainant on the voir dire. It was submitted that it was not enough for the judge to act upon C's own expression of her reasons, in terms of family relationships, because an assessment of reasonableness could not be made without some knowledge of the nature of the relationships, the nature of her role as a paralegal, her own marital status and her state of mind. Such evidence, it was submitted would give colour to the general evidence contained in C's statements.

True it is that oral evidence may give colour and weight to what is contained in a witness statement. However it does not follow that oral evidence will necessarily do so, let alone that it would necessarily have done so in this case. For all that appears in the material placed before us, the reverse might have been the effect. The onus is upon the applicant to demonstrate to this Court that the evidence which would have been given would have improved the position of the Crown. This the applicant has not done. For that reason alone, the application should be dismissed.

Even if one were to assume the existence of evidence favouring the Crown the result would be the same. Counsel for the applicant contended that this should not be so because of the decision in Jago. He submitted that that decision imposed upon a trial judge a responsibility to enquire into the matters referred to above before granting such an exceptional remedy as a stay. This obligation subsisted, it was submitted, even if neither party sought to call such evidence. With the greatest respect, that argument misapprehends the nature of the proceedings on an application for a stay.

An application for a stay is, like most other matters in our courts, an adversarial proceeding. The onus lies upon a person seeking a stay (presumably, an accused) to place before the Court evidence sufficient not only to enliven the judge's discretion but also to warrant its exercise. The evidence before the judge in the present case was sufficient in both respects. An accused in such a situation does not have any onus to place all possible evidence which might exist before the court - that would be absurd. If the Crown asserts that there is other evidence in existence which bears upon the issues, it carries an evidentiary onus to tender it. That is particularly so in a case such as the present where the principal person who could have given the relevant evidence was the complainant. Under no circumstances does the trial judge have a responsibility to enquire into the evidence, and nothing in Jago suggests that he does. His task is to exercise his discretion on the totality of the evidence placed before him by the parties. That is what the learned District Court judge did in the present case.

Before us, it was submitted that the judge made his assessment on the basis of statements made from the bar table. That is simply not correct. The material which was handed to the judge is described above. His Honour appears to have disregarded the statement of the accused's daughter, its content being in conflict with those of C. There is no suggestion that anything in that statement could have assisted the Crown. His Honour's findings appear to have been based upon the statements and affidavit made by C and the evidence given by her at the committal proceedings. Probably it would have been better had His Honour made those documents exhibits in the application, but it cannot be suggested that this omission in any way caused his discretion to miscarry. Although the evidence before His Honour was not placed before us, there was no suggestion that anything in His Honour's reasons for judgment was drawn from anywhere else.

Finally, it was argued that His Honour wrongly rejected a submission by the Crown Prosecutor that he should be allowed to call evidence on the voir dire. The prosecutor was given only three-quarters of an hour's notice of the application. However he allowed the application to proceed without objection until counsel for the accused finished his submissions. The prosecutor then sought an adjournment, but only to look at the cases. That adjournment was granted on the basis that the prosecutor would let the bailiff know when he was ready to resume. The jury panel had been released and His Honour observed, "We have got the rest of the day".

Upon the resumption an hour and 20 minutes later, the prosecutor announced that he had reduced the Crown's submissions to writing, and he handed that document to the judge. There is no suggestion in it that further evidence should be called. The prosecutor spoke briefly to the written submission, in the course of which the following exchange occurred:

"MR CARMODY: ...It's really a question of balance for Your Honour as to whether or not on the material that you have got from the accused whether you think a fair trial can also - can be had and if I can just mention one other matter that seems to me to be pertinent that's not mentioned by the Chief Justice in Jago, that one of the other material considerations must be that the public has, of course, a keen interest, in seeing that the allegation was a serious offence, is tried by jury if it's all possible to do so, with justice and fairness.

HIS HONOUR: Yes.

MR CARMODY: And I suppose the question can always be reconsidered during the course of the trial because in that unreported decision that I----

HIS HONOUR: I would have thought that isn't the Judge trespassing - how could it be reconsidered through the trial? You say if I don't like someone's recollection----

MR CARMODY: Well, I concede that there is the practical difficulty in doing that, but at the same time Your Honour would be in a better position to assess the impact of the lapse of time after evidence has been heard than you are now. Well perhaps it might have to be on the voir dire, I don't know, but it seems to me there is not enough material presently for you to make a balanced judgment, but----

HIS HONOUR: One other thing, it was mentioned by Mr Wilkin [counsel for the accused] that the - or by you, or someone, that in point of fact the accused had admitted that he had some sort of sexual dealings with the girl after she was 16.

MR CARMODY: Yes.

HIS HONOUR: Is that in a record of interview?"

Before us it was argued that the paragraph commencing "Well, I concede..." constituted a submission by the prosecutor that the judge should hear further evidence on the issues already referred to.

Two observations may be made about that paragraph. First, it is not at all clear that the prosecutor was interrupted in his submission. He proceeded to answer the question posed by His Honour at the end of the passage quoted, commenting upon that evidence as he did so, and then sat down. The transcript is as consistent with the prosecutor running out of things to say before His Honour spoke as it is with his having been interrupted. Second, in any event, the paragraph relied upon does not constitute a submission. A conversational observation of personal opinion is quite inadequate for such a purpose. Candidates for the bar learn the difference between "I think..." and "I submit..." before their admission and it is drummed into them. It cannot be supposed that the experienced prosecutor was doing other than thinking aloud. This view is reinforced not only by the absence of any reference to such a contention in the written submission, but also by the fact that the prosecutor identified neither the topic upon which further evidence might be led nor what the effect of that evidence might be. There was no submission by the Crown Prosecutor that he should be allowed to call further evidence.

No grounds having been shown for this Court to interfere with the exercise of the discretion of the learned trial judge, the application before us should be dismissed with costs.

1

Jago v District Court NSW (1989) 168 C.L.R. 23; Walton v Gardiner (1993) 177 C.L.R.

378; Johannsen v DPP, unreported, Court of Appeal 218/95, 30th April 1996. R. v Goulding, unreported, Court of Appeal 154/94, 3rd August 1994. The applicant did not tender any of the statements before us.

2
3