R v JACOBI - [2012] SADC 92

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v JACOBI
[2012] SADC 92
Ruling of His Honour Judge Soulio
16 July 2012
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Applicant sought stay of criminal proceedings on the basis that their continuation would constitute an abuse of process given the applicant's physical health, and the loss of evidence due to the delay between the charged acts and the complaint to authorities.
Held: Application refused.
The District Court (Criminal and Miscellaneous) Rules 1992 (SA) r 8; Criminal Law Consolidation Act 1935 (SA) ss 49, 56, 72A, 76A; Criminal Law Consolidation Act Amendment Act No. 98 of 1985 s 5; Evidence Act 1929 (SA) s 34CB & 34M, referred to.
R v Liddy [2010] SADC 80; Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; Williams v Spautz (1992) 174 CLR 509; Walton v Gardiner (1993) 177 CLR 378; Police v Sherlock (2009) 103 SASR 147; R v Glennon (1992) 173 CLR 592; R v Littler (2001) 120 A Crim R 512; Police v Pakrou (2008) 103 SASR 124; R v Davis (1995) 81 A Crim R 156; R v Hakim (1989) 41 A Crim R 372; R v Austin (1995) 84 A Crim R 374; R v Sexton [2000] SASC 379; R v Ulman-Naruniec (2003) 143 A Crim R 531; Longman v The Queen (1989) 168 CLR 79; R v Lane (unreported, FCA, Wilcox, Ryan and Higgins JJ, 19 June 1995); R v Polyukhovich S 3782 (unreported, SASC, Cox J, 7 December 1992); R v Liddy (No 4) [2001] SASC 152; R v T (1985) 38 SASR 428; R v Pinder (1989) 155 LSJS 65; R v Glynn (2002) 82 SASR 426; R v PNJ (No2) (2007) 99 SASR 1; Dupas v The Queen (2010) 241 CLR 237, considered.

R v JACOBI
[2012] SADC 92
Introduction

By an amended Information dated 9 July 2012 the applicant is charged with 13 offences of a sexual nature, namely three counts of indecent assault involving complainant SBM, eight counts of unlawful sexual intercourse against a complainant SJM, and two counts of unlawful sexual intercourse against a complainant VM. The complainants are brothers. The offences are said to have been committed between 11 April 1976 and 31 December 1987.
The Application
The applicant filed an application pursuant to r 8 of The District Court (Criminal and Miscellaneous) Rules 1992 (SA) seeking an order that the proceedings be permanently stayed, on the grounds that their continuation would constitute an abuse of the Court’s processes. The grounds were couched in the following terms:
There is unfairness, prejudice and oppression to the applicant by virtue of the continuation of the proceedings such that would justify granting a permanent stay of proceedings on the grounds that:
(a)     The applicant’s physical health is such that he will not be able to properly participate in the trial;
(b)     The court proceedings will have a deleterious effect on the applicant’s health and in those circumstances it is oppressive for the trial to proceed; and
(c)     The delay between the alleged offending and the charges proceeding to trial has resulted in the unavailability of potential witnesses and the destruction of material documents such that there is an unfairness to the applicant.
By the time the application came on for hearing, the acts constituting the charged offences were said to have been committed between 25 and 36 years earlier.
The material upon which it was agreed that the application should proceed, included; the complainants’ declarations; the declaration of the investigating officer, Senior Constable Anita Newton, including a transcript of the police interview of the accused; an affidavit of the applicant sworn 4 July 2012, together with the exhibits to that affidavit; the supplementary oral evidence of the applicant’s general practitioner, Dr Van Dissel; and documents relating to a payment of money by the applicant to the complainant SJM in 1996.
There was no application to cross-examine witnesses as to the contents of declarations or the affidavits.
Power to Stay Proceedings
As was observed in R v Liddy:[1]
This court has power to permanently stay criminal proceedings in circumstances where to continue with those proceedings would constitute an abuse of process. The power is either an implied power or an aspect of this court’s inherent jurisdiction to regulate its own processes. The power to order a permanent stay is discretionary, to be exercised sparingly, and only in exceptional or extreme cases. The onus of satisfying the court of an abuse of process lies on the party alleging it and the onus, is a “heavy one” to discharge. (citations omitted)
[1] R v Liddy [2010] SADC 80 per Nicholson DCJ at [7].
The categories of cases in which the inherent power to stay proceedings might be enlivened cannot be precisely delineated.[2]
[2] Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23 at 74 per Gaudron J.
As the High Court said in Batistatos v Roads and Traffic Authority of New South Wales:[3]
Abuse of process cannot be restricted to ‘defined and closed categories’ because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of ‘abuse of process’ is at large, or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ or ‘productive of serious and unjustified trouble and harassment’.
[3] Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at 267.
The power is certainly not limited to the well established circumstances justifying a permanent stay of proceedings, referred to in Batistatos, namely proceedings pursued for an improper purpose,[4] and proceedings brought for frivolous, vexatious or oppressive purposes.[5]
[4] Williams v Spautz (1992) 174 CLR 509.
[5] Walton v Gardiner (1993) 177 CLR 378 at 392-393 per Mason CJ, Deane and Dawson JJ.
The fact that an accused’s health has deteriorated during a delay in prosecution may mean that a continuation of the prosecution is oppressive.[6]
[6] R v Hakim & Anor (1989) 41 A Crim R 372.
However, that deterioration must be serious and demonstrable to justify a permanent stay of proceedings.[7] It would be a rare case that intervening illness or the physical and mental condition of the accused will bring a court to a conclusion that it would offend common humanity to require an accused to stand trial, and accordingly to stay proceedings.[8] It is a very serious step to stay the prosecution of a person for a serious criminal offence, where prima facie, there is a substantial evidentiary basis for that prosecution, as I find there is here.[9]
[7]    R v Austin (1995) 84 A Crim R 374.
[8]    R v Hakim & Anor (1989) 41 A Crim R 372 per Kirby P at 377.
[9]    R v Sexton [2000] SASC 379 at [26].
Delay, and its attendant consequences on a party’s ability to fairly meet a case sought to be made against him, can attract the exercise of the discretionary remedy.[10] In particular, the unavailability of identified evidentiary material that might have assisted the defence of a criminal charge in a material way, may provide a foundation for the exercise of the power.[11]
[10] Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23 at 58 per Deane J, cited with approval in Walton v Gardiner (1993) 177 CLR 378 at 394 per Mason CJ, Deane and Dawson JJ.
[11] Police v Sherlock (2009) 103 SASR 147 at 154-155 per Doyle CJ.
As Deane CJ observed in Jago v The District Court of New South Wales:[12]
If circumstances exist in which it can be seen in advance that the effect of prolonged and unjustifiable delay is that any trial must necessarily be an unfair one, the continuation of the proceedings to the stage of trial against the wishes of the accused will constitute an abuse of that curial process. In such a case, the continuation of proceedings to the stage of trial will inevitably infringe the right not to be tried unfairly and a court which possesses jurisdiction to prevent abuse of its process, possesses jurisdiction, at the suit of the accused, to stay the proceedings pursuant to that power.
[12] Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23 at 57-58.
Where the application for a stay is based on unfairness, the discretion may be exercised in order to remedy a defect of such a fundamental nature that nothing that a trial judge could do in the conduct of the trial could relieve against its unfair consequences.[13] A trial in such circumstances would not be a fair trial according to law.[14]
[13] R v Glennon (1992) 173 CLR 592 at 605-606 per Mason CJ and Toohey J.
[14] Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23 at 75 per Gaudron J.
The Balancing Process
The court is required to embark on a two stage process in order to determine whether the inherent power ought to be exercised.
First it is necessary to determine whether any unfairness, injustice, prejudice or oppression has been established that might enliven the power to stay proceedings.
Consideration of the exercise of the power to stay proceedings will arise whenever the processes of the court “… may be converted into instruments of injustice or unfairness.”[15] To conduct a prosecution in circumstances where the accused is constructively deprived of the opportunity to make a proper answer to the case against him may be unfair or oppressive.
[15] Walton v Gardiner (1993) 177 CLR 378, at 392-393 per Mason CJ, Deane and Dawson JJ.
Where there is extensive delay between the time of the alleged misconduct, and the trial of the criminal charges, resulting in a number of relevant witnesses and other evidentiary material becoming unavailable or inaccessible in the intervening period, the capacity of the court to provide the applicant with a trial that is not unfair will require careful consideration.[16]
[16] See R v Littler (2001) 120 A Crim R 512.
The second stage of the inquiry involves the subjective balancing of a variety of factors and considerations, among which 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.[17]
[17] Walton v Gardiner (1993) 177 CLR 378, at 395-396 per Mason CJ, Deane and Dawson JJ.
In considering the approach to be taken in that balancing process, Kourakis J observed, in Police v Pakrou,[18] that the relevant considerations included the nature and strength of the evidence to be called as part of the prosecution case. If there is no feature of the evidence that creates any difficulty in properly weighing its probative value, then the case for a stay would be less compelling. However, where the evidence relied upon by the prosecution may be “insusceptible of rational or safe forensic evaluation, whether because of delay or any other cause” the risk of an unsafe conviction may arise and provide adequate justification for the exercise of the exceptional power.[19]
[18] Police v Pakrou (2008) 103 SASR 124 at [71-74].
[19] Police v Sherlock (2009) 103 SASR 147 at [103].
A further consideration is the degree of risk that any conviction, based on the evidence to be adduced, would be attended by a miscarriage of justice. The degree will necessarily vary having regard to the nature of the evidentiary material lost, destroyed or no longer available, and any explanation for its absence.[20]
[20] In Police v Pakrou the lost evidence consisted of security footage which had been destroyed.
A third consideration identified by Kourakis J was the public interest in prosecutions for serious offences, based on a reasonable evidentiary foundation, proceeding to trial.[21] However, the relevant public interest is a public interest built on an underlying proposition that the public has no interest in seeing the disposition of charges and the conviction of those guilty of crimes, if such outcomes follow litigation that is unfair, prejudicial, oppressive or unjust.[22]
[21] Police v Pakrou (2008) 103 SASR 124 at [73].
[22] Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23 at 33 per Mason CJ, and at 72 per Toohey J.
As was observed in R v Davis:[23]
The point, no doubt, is that, although there is a public interest in bringing allegations of serious criminal conduct to trial, there is no public interest in doing so under circumstances of irreparable unfairness. It is more important to retain the integrity of our justice system than to ensure the punishment of even the vilest offender. We do not say this because the justice system is some precious preserve of the judges; it is not. We say this because the integrity of the justice system is a fundamental and essential element in the maintenance of a free society. Our society should not buy the conviction of its guilty at the cost of allowing trials which would inevitably risk convicting also the innocent.
[23] R v Davis (1995) 81 A Crim R 156 at 165.
The Allegations
The prosecution alleges that the applicant sexually abused three brothers on a continuing basis between 1976 and 1989. The complainant SBM was allegedly abused from 1976 to about 1979, when he was between the ages of 11 and 14 years. The applicant is charged with three counts of indecent assault, contrary to s 56 of the Criminal Law Consolidation Act (CLCA).
The complainant SJM was allegedly abused between 1980 to 1987, when he was between the ages of 6 and 13 years. The applicant is charged with eight counts of unlawful sexual intercourse, contrary to s 49(1) of the CLCA.
The complainant VM was allegedly abused from about 1986 to 1989 when he was between the ages of 10 and 13 years. The applicant is charged with two counts of unlawful sexual intercourse, contrary to s 49(1) of the CLCA.
None of the complainants made a complaint while they were being abused. SJM complained to his employer when he was in his late teens. However the matter was not brought to the attention of police until SJM made a complaint in February 2010, and the applicant was arrested in March 2010. It is common ground that the delay is not attributable in any way to the actions of the accused.
Factors Relied Upon by the Applicant
The Applicant’s Health
The principal ground relied upon by the applicant was the state of the applicant’s health. The applicant was born on 3 March 1927 and is now 85 years of age. He resides in supportive care accommodation and has done so since 1 July 2011. He requires assistance with walking, personal care, and transport due to his advanced age and illnesses, such care being provided by a care organisation.
In his affidavit, the applicant described difficulty concentrating for lengthy periods, and difficulty reading newspapers or magazines, having to re-read words before he understands what is written. He described having difficulty concentrating while watching television, and said he falls asleep while watching television. He deposed to the fact that he spends a considerable part of each day sleeping, and says that if he is required to attend an appointment with the assistance of a carer, such as to visit his doctor, he is generally too tired to engage in any activity for the balance of the day and the following day. He asserts that he would struggle to maintain concentration, and to combat fatigue, during a trial.
On 15 March 2010 the applicant was interviewed by police at his house at Kapunda, where he was living independently. In that interview the applicant said that he had recently travelled to Queensland at the age of 83, and attended some form of nudist hotel.
In a report dated 11 August 2010 his general practitioner, Dr Van Dissel, reported that he did not believe that the applicant was fit to stand trial, and that imprisonment would cause a serious deterioration in the applicant’s failing health.
A report of 25 January 2012 set out the applicant’s medical problems as follows:
1.Cardiac failure due to atrial fibrillation (he requires diuretic medication to remove fluid that accumulates in his lungs and lower extremities). This leads to frequent urination which exacerbates his incontinence problems. He also suffers episodes of faecal incontinence.
2.Depression/and anxiety – Fred’s mental health has deteriorated over the last year. He experiences quite severe shaking of his hands which is a manifestation of his anxiety. He suffers from suicidal ideation due to severe depression. Fred was unable to tolerate an anti-depressant medication. Fred is afraid to drive alone. The shaking of his hands makes it very difficult to write or use eating utensils.
3.Osteoarthritis of both hips and knees has severely limited his mobility. He requires a walking stick for balance. He will require joint replacement surgery in the future.
The charges against the applicant were first listed for trial to commence on 6 February 2012. By letter of 2 February 2012 Dr Van Dissel reported that on 1 February 2012 he had admitted the applicant to Kapunda Hospital for investigation of increasing chest pain and shortness of breath. The applicant’s ECG showed non-specific changes in the lateral chest leads consistent with the ischaemic heart disease. Complaints of further stress and pain during the early hours of 2 February 2012 led to a diagnosis of unstable angina and further cardiac medication was prescribed. Dr Van Dissel said that he would seek a cardiologist’s opinion regarding further management. He concluded that the applicant was not fit to stand trial commencing 2 February 2012, and expressed the opinion that there could be a serious negative impact on his health as a result of doing so.
Dr Van Dissel was called to give evidence on the application, and said that he had last seen the applicant on 18 June 2012 at his medical practice, presumably in Kapunda, where the applicant had been taken by a worker from the Gawler supportive accommodation hostel, where the applicant was currently living. He said that he had previously admitted the applicant to the Kapunda Hospital on 24 August 2011 when the applicant was suffering significant shortness of breath, and complaining of ankle swelling and increased weight. On examination he found the applicant’s heart beat to be irregular, and described the applicant as being in congestive cardiac failure. Dr Van Dissel prescribed Digoxin to slow the heart rate, and Frusemide to facilitate the removal of fluid from the circulation.
He described the congestive cardiac failure as the applicant’s most significant medical condition, a chronic condition which requires regular medication and will gradually deteriorate. Dr Van Dissel described having observed a deterioration in that condition from the time of first diagnosis.
Dr Van Dissel said that the applicant also suffered ischaemic heart disease and suffered transient ischaemic attacks, or mini strokes, which is a separate condition from the cardiac atrial fibrillation, but which has a cumulative effect on that condition.
Dr Van Dissel said that the applicant had a 70 per cent blockage of the internal carotid artery, and that the atrial fibrillation was such as to produce clots which could, in turn, attach to the already present blockage to the artery and block arterial flow to the brain. He said that the applicant was at too great a risk of complication should surgery be carried out, and that accordingly the condition should be treated conservatively by managing risk factors which included managing hypertension, controlling the irregular heart beat with medication, and thinning the blood by the use of Aspirin.

Dr Van Dissel described a worsening of the applicant’s cardiac condition between the admission to hospital in August 2011, and the examination in June 2012, and said that since February 2012, when he admitted the applicant to the Kapunda Hospital, the cardiac condition was one third worse, which would manifest in increased shortness of breath, decreased exercise tolerance, general malaise and fatigue.
Dr Van Dissel described the applicant’s osteoarthritic condition in his knees as being an extremely painful condition. He said the applicant’s ability to concentrate had decreased over the last six months.
Dr Van Dissel expressed the opinion that the longest the applicant could concentrate during a trial would a period of one to two hours, and said that he would be concerned about the applicant sitting for more than that period in a whole day, due to the applicant’s malaise, fatigue from congestive heart failure, and pain from the osteoarthritis which would affect concentration. He also expressed concern that the stress of the trial process could cause a stroke, and said that if the applicant sat for more than one to two hours per day there was a “distinct possibility” that the applicant’s health would be affected.
Dr Van Dissel expressed the opinion that the applicant’s life expectancy was of the order of one to two years. He said that he suspected that the applicant’s life expectancy would be reduced should the applicant face trial. Dr Van Dissel also expressed the view that the applicant suffered significant medical conditions which could lead to a stroke, regardless of whether the applicant was in court, although the increased stress may increase the likelihood of such an event.
However, Dr Van Dissel described the applicant as a man of normal intellect, who would not have difficulty following the evidence or providing instructions.
Dr Van Dissel said that the applicant’s memory was quite good, although his concentration was affected by pain from the osteoarthritis and from depression. He reiterated that, generally, the applicant’s memory and recall of events is quite good, and did not consider that memory would be a negative factor in preventing the applicant’s sitting in court and participating in the trial, albeit for limited hours each day.
The applicant is living in supportive accommodation, not a nursing home, although in re-examination Dr Van Dissel expressed the view that the applicant was now at the stage where he should be admitted to a nursing home.
It is also noteworthy that whilst the applicant’s cardiac condition and its sequelae are said by Dr Van Dissel to constitute the most serious medical condition, the applicant has never been under the care of a cardiologist, although Dr Van Dissel said that he had spoken with a cardiologist for advice.
Counsel for the applicant relied principally on the decision in R v Hakim.[24] There, a magistrate in committal proceedings had stayed proceedings against one of three accused. A Court of Appeal was ultimately required to consider whether a single judge of the Supreme Court had erred in the exercise of his discretion to order a stay. The accused there had a long history of ischaemic heart disease complicated by a complete heart block, which had resulted in the need for a bypass operation in 1991 with serious complications. The accused had suffered a range of physical, neurological and psychological conditions and his prognosis was poor. His memory had been affected by his condition and subsequent treatment. His condition was deteriorating. The accused had been, at relevant times, confined to a prison hospital.
[24] R v Hakim (1989) 41 A Crim R 372.
Lee J, in the decision under appeal, concluded of the accused:
He has been in hospital, now in the gaol hospital for six months and it is put to me that in those circumstances his declining deteriorating medical condition is of such a nature and should be viewed in such a light that the conclusion be drawn that to allow this charge to remain would amount to an abuse of the process of the court. … I am unwilling to regard the deplorable medical condition in which Hakim finds himself as other than a reason for upholding the decision of the magistrate in this case. … I do feel compelled in the light of the medical evidence to take the view that to allow these charges to stand in the light of the continuing deterioration of Hakim, who is now 58 years of age, would be out of accord with common humanity when the fact is also that he has already to some extent suffered prejudice in regard to his memory from the passage of time between the commission of the alleged offence and now. ... I think this case just falls within the class of case which can be regarded as abuse of process.
Clarke JA held that the respondent’s medical condition, and its deterioration prior to and following the institution of proceedings, was a relevant consideration, and that the weight to be accorded to such a consideration will vary depending upon the circumstances under consideration.
Applications for a permanent stay have been made in a number of other cases, each of which, of necessity, must turn on their own facts.
In R v Austin[25] the applicant was an 87 year old man facing charges, the earliest of which was said to have taken place 48 years earlier, and the most recent about 15 years prior to trial. An application for a stay was brought on the basis of the delay, and of the health of the applicant who suffered arthritis, Meniere's syndrome, hypertension and diabetes, with some evidence of difficulties with high order cognitive functioning which might result in difficulty in recalling accurately the information of events occurring many years ago.
[25] R v Austin (1995) 84 A Crim R 374.
There, Owen J held that while the delay in the case was remarkable, there is a clear public interest in permitting the criminal justice system to operate so as to determine the guilt or innocence of a person accused of crimes of this magnitude. There is the undeniable public interest in ensuring that all members of society are treated fairly, and that the instruments of society are not used to work injustice and oppression. The accused has an inviolable right to a fair trial. The complainants need to know that their allegations have been dealt with in a proper fashion. All of these concerns need to be addressed and balanced.
Ultimately, Owen J held that the question was whether there were circumstances personal to the applicant that transcended the mere fact of delay and which meant that the applicant would necessarily be deprived of a fair trial, or that to allow the proceedings to continue would be unnecessarily oppressive to him.
He dismissed the application and held that consideration of the extent to which the applicant had been prejudiced by the delay went to the evaluation of the evidence given at trial, rather than to the fairness or otherwise of the trial process. He said further, that the fact that the delay would hamper the applicant's means of testing the complainants' allegations, should be resolved by judicial direction at trial.
Further, the applicant's poor health and impaired capacity to organise information and recall events were relevant to how the trial should be run, and how the jury should be directed, rather than compelling a conclusion that any trial which followed must necessarily be unfair.
In R v Sexton[26] Olsson J, in ruling on an application for a stay of proceedings, after summarising the medical evidence in relation to the condition of the applicant, distinguished R v Hakim[27] on the basis that the stay there was granted as the product of the combined effect of three compounding factors, namely dilatory conduct on the part of the prosecution, more profound medical problems, including the fact that Hakim’s prognosis was very poor and his condition was such that he had been in the gaol hospital for six months with a manifestly progressive deterioration of his condition, and importantly, that Hakim’s memory had undoubtedly been adversely affected by his condition and subsequent treatment.
[26] R v Sexton [2000] SASC 379.
[27] R v Hakim (1989) 41 A Crim R 372.
Olsson J ruled that appropriate arrangements could be made in the running of the trial, to accommodate the applicant’s medical difficulties, including facilitating the availability of emergency treatment, and dismissed the application.
Delay
As I have said, the complainants first reported this matter to police in 2010. One of the complainants was paid a sum of money by the applicant in 1996. The applicant had instructed solicitors in relation to that matter, and at the conclusion the solicitors wrote to the applicant by letter dated 17 July 1996 stating:
We are pleased to advise that M has signed the Deed. We enclose herewith a copy of the letter that we sent to M which shows that he had full legal advice before he signed the Deed. We would therefore submit that this Deed would be lawful to prevent him from making any further claims against you.
We do however advise that the Deed does not prevent him from reporting the matter to police although he would now have no further need to do so.
Should you be contacted by a member of the South Australia Police Force we suggest that you state to them your name, age and address and say that on the advice of your solicitor you do not wish to answer any further questions.
In fact, no action could have been taken at that time because the charges were statute barred by the operation of s 76A of the CLCA which provided:
(1)No information shall be laid for an offence to which this section applies more than three years after the commission of the offence.
Section 76A thereby precluded prosecutions commenced more than three years after the alleged offences.[28] That section was repealed by s 5 of the Criminal Law Consolidation Act Amendment Act No. 98 of 1985, effective from 1 December 1985. The repeal applied retrospectively, but was incapable of reviving prosecutions after the three year limit had elapsed.[29]
[28] R v T (1985) 38 SASR 428.
[29] R v Pinder (1989) 155 LSJS 65.
Subsequently, by amending Act No 14 of 2003, s 72A of the Criminal Law Consolidation Act was enacted, abolishing any time limitation for the prosecution of this type of offending. The section relevantly provided:
Division 14—Procedure in sexual offences
72A—Former time limit abolished
Any immunity from prosecution arising because of the time limit imposed by the former section 76A is abolished.
Accordingly, charges could have been laid with respect to this matter, from the 17 June 2003 when s 72A came into operation.
The fact that the statutory bar has been removed, and the within proceedings therefore validly instituted, cannot, of course, be an entire answer to a question of this nature.[30]
[30] Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at 280.
It is not necessary to determine the blame for the delay and consequential unfairness.[31] The determination of the application for a stay for abuse of process is concerned with the consequences of external factors on the fairness of litigation, whether by lapse of time or loss of evidence, rather than solely concerned with the malfeasance or laxity. I accept that it is not incumbent upon the applicant to demonstrate that the complainant was at fault for the delay.
Loss of Evidence
[31] Ibid at 281.
The second limb of the applicant’s argument is, in effect, that the delay is such as to compromise the court’s capacity to properly assess the true value of the evidence of the complainants in circumstances where the means through which deficiencies in their account might be exposed, have long since disappeared.[32]
[32] See Police v Pakrou (2008) 103 SASR 124.
The applicant’s mother is now deceased. She is said to have been present in the lead up to a sexual incident with the complainant SBM. There is no declaration from the complainants’ father.
Further, a number of documents have been destroyed:
The school records of the complainant SBM have been destroyed. Counsel for the applicant submitted that the absence of the school records meant that the applicant could not test or challenge an assertion by that complainant that the applicant had had a conversation with the school principal to facilitate the complainant’s absence from the school for the purposes of the applicant engaging in sexual contact with him. Counsel submitted that the applicant was unable to even identify the name of the school principal so as to be able to make his own investigation.
Counsel made the submission that the destruction of the motor registration records prevented the applicant from establishing, with the necessary degree of precision, the date at which the applicant owned a black BMW motorcycle, which the complainant SBM asserts the applicant possessed at a time when sexual contact was taking place, and when that complainant was significantly under the age of consent. Counsel submitted that the timing of the applicant’s association with that complainant is central to the applicant’s defence to all charges.
Importantly, counsel submitted that a monetary transaction between the applicant and the complainant SJM cannot be explored as the applicant’s legal file in respect of that transaction, which occurred in 1996, has been destroyed.
There is in existence some documentation relating to that transaction which appears to evidence the payment of a sum of $10,000 by the applicant to SJM in 1996.
There are, as counsel submitted, a number of examples where criminal proceedings have been stayed after evidence has been destroyed, if the continuation of them would result in an unacceptable injustice to the accused.[33] Counsel acknowledged a number of decisions in which applications had been refused.[34]
[33] See R v D,P [2005] SADC 31 (destruction of complainant’s memoires); Whelan v Police [2005] SASC 2005 (destruction of glass door relevant to location of incriminating fingerprint); Rukavina v Police [2004] SASC 247 (destruction of video); Commonwealth Delivery Agency v Bourke (1999) 75 SASR 299 (destruction of social security records); Duncombe-Wall v Police (1998) 197 LSJS 398 (000 tape); R v Gray (1997) 70 SASR 62 (opportunity for medical and forensic testing lost; unavailable witness); R v Davis (1995) 81 A Crim R 156 (destroyed medical records).
[34] R v Edwards (2009) 255 ALR 399 (logs); Police v Sherlock (2009) 103 SASR 147 (video footage); Sedmak v Police (2008) 258 LSJS 446 (bank records).
As counsel submitted, it must be “on the cards” that missing documents or records would materially assist the defence, but the applicant is not required to show with precision what the witnesses would have said, or the documents would have shown, had they been available or accessible.[35]
[35] R v Ulman-Naruniec (2003) 143 A Crim R 531.
Counsel submitted that the cumulative effect of the lost or destroyed documents, and the witnesses no longer being available, means that the applicant will suffer prejudice and unfairness should the trial proceed.
Counsel for the Director of Public Prosecution submitted that the absent witnesses and missing documents relied upon, in part, to sustain the applicant’s allegations are not, in the context of the evidence to be called at trial, significant.
As counsel submitted, the absence, for example, of a record of a conversation between the school principal and a person claiming to be the complainant’s father could not be said to prove that such an event did not occur.
I bear in mind that the applicant does not have to prove anything, and if the absence of such a record is a factor which might raise doubt about the evidence of the complainant generally, that might be of significance.
Counsel for the Director of Public Prosecution submitted that on the evidence there would be no dispute that the applicant spent time with the family of the complainants during the 1970s and that there appears to be no dispute that the applicant owned a black BMW motorcycle.
Counsel for the Director of Public Prosecution made the further submission that in each case the sexual abuse is said to have occurred predominantly in the privacy of a bedroom, or on the outside of the complainants’ clothing, when they were in more public areas but when no one else was watching. It was submitted that, on that basis, the absence of the applicant’s mother and the complainants’ father as witnesses could not mean that the applicant’s trial would be unfair or oppressive.
The position adopted by the Director of Public Prosecution is that, in relation to any defects in the trial resulting from the loss of documentary evidence, or the unavailability of witnesses, such defect may be remedied by a direction to the jury to take into account any forensic disadvantage suffered by the applicant, when the jury scrutinises the evidence. Counsel submitted that any forensic disadvantage in the present case, due to delay and the loss of documents or the unavailability of witnesses, is no more significant than in any case where there is a significant delay between the asserted acts, and the trial, and directions pursuant to s 34CB of the Evidence Act 1929 (SA) is the appropriate remedy.
Prior to the introduction of s 34M and s 34CB of the Evidence Act, in a case of this nature, directions to a jury would be required to explain the applicant’s loss of those means of testing the complainant’s allegations which would have been open to him had there been no delay in prosecution – and the fact that – had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence, and perhaps to adduce evidence throwing doubt upon the complainant’s story or confirming the applicant’s denial.
As was observed in Longman v The Queen:[36]
After more than 20 years, that opportunity was gone and the [complainant’s] recollection of them could not adequately be tested. The fairness of the trial had necessarily been impaired by the long delay … to leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice.
[36] Longman v The Queen (1989) 168 CLR 79 at 91 per Brennan, Dawson and Toohey JJ.
By s 16 of amending Act No 7 of 2008, s 34CB was inserted into the Evidence Act. Section 34CB relevantly provides:
(1)A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note—
See Longman v The Queen (1989) 168 CLR 79
(2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a)     explain to the jury the nature of the forensic disadvantage; and
(b)     direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3)An explanation or direction under subsection (2) may not take the form of a warning
and—
(a)     must be specific to the circumstances of the particular case; and
(b)must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
The new sections do not prohibit the giving of a direction on forensic disadvantage, but rather constrain the direction to be given within the terms of sub-s (2) of s 34CB. Such a direction may nevertheless serve to ameliorate the disadvantage suffered by the applicant.
Conclusion
In legislating to remove the statutory limitation on the prosecution of charges involving sexual offences, it must have been contemplated that allegations of sexual misconduct said to have taken place many years, and even decades earlier, would be pursued.
It is not uncommon that there be delay in the reporting of sexual matters, particularly when the complainants are children, and even more particularly where the complainant is in some form of familial relationship with the accused.

As was observed in R v Lane:[37]
… it is commonplace for there to be a substantial delay in the reporting of alleged sexual assaults, especially where the complainant is a child … it seems that many sexual assault victims are unable to voice their experience for a very long time. To adopt a rule that delay simpliciter justifies a stay of criminal proceedings would be to exclude many offences, particularly offences against children, from the sanctions of the criminal law.[38]
[37] R v Lane (unreported, FCA, Wilcox, Ryan and Higgins JJ, 19 June 1995), cited in R v Davis (1995) 81 A Crim R 156 at 158-159.
[38] R v Liddy (No 4) [2001] SASC 152 at [15].
Even though the delay between the acts said to constitute the charge, and the trial, might be described as an extraordinarily long delay, that is not of itself a basis for granting a permanent stay of the proceedings. In R v Polyukhovich, Cox J said:[39]
It would be a rare case in which mere delay, even very long delay, would lead to a stay in the absence of some evidence of actual prejudice of the accused … abuse of process in this context is all about the risk of an unfair trial and what may be done about it, and a long delay between offence and trial will not inevitably lead to unfairness … it seems better to say that in certain cases, depending on the nature of the evidence, the longer the delay the more readily will the court infer prejudice to the accused by reason of that delay. Every case has to be judged on its own facts, with particular attention to any countervailing … steps – procedural directions, for example, or warnings to the jury – that may be taken by or by order of the court, before or during the trial, to deal with the apprehended unfairness.
[39] R v Polyukhovich S 3782 (unreported, SASC, Cox J, delivered 7 December 1992).
The mere absence of material witnesses due to delay would not necessarily deprive the accused of a fair trial. As Cox J observed in Polyukhovich:[40]
A fair trial is not the same as a perfect trial, and it is certainly not the case that a trial will necessarily be unfair in the relevant sense unless all possible witnesses are available to give evidence.
[40] Ibid.
The nature of the exercise was described by Gallop J in R v Davis at first instance in the following terms:[41]
The decision whether to stay the committal proceeding against the applicant has to be the result of a weighing process involving subjective balancing of the various factors and considerations supporting or militating against a conclusion that a continuation of the proceedings would be so unfairly and unjustifiably oppressive of the applicant as to constitute an abuse of the Magistrate’s Court process. The comparative weight to be given to particular considerations and factors in that weighing process and the ultimate outcome of it involves a substantial element of individual judgment.
[41] R v Davis (1995) 81 A Crim R 156, approved on appeal.
As Bleby J observed in R v Ulman-Naruniec:[42]
It is, therefore, not the case that any perceived unfairness in a trial will result in a permanent stay. It seems that at least three of the Judges of the High Court in Jago consider that there must be something so exceptional in the apprehended unfairness that it cannot be corrected by other measures open to the court, and that there is a necessary balancing requirement between the apprehended unfairness on the one hand and the public interest in trying persons charged with criminal offences on the other, the latter yielding only when continuation of the prosecution will lead to oppression and injustice and is thus inconsistent with the recognised purposes of the administration of criminal justice.
[42] R v Ulman-Naruniec (2003) 143 A Crim R 531 at [24].
A permanent stay based on abuse of process is a remedy of last resort, and there must be no other means available to bring about a fair trial.[43] An important public interest consideration is the interest of victims and their families in having the person who has harmed them charged and prosecuted.[44]
[43] R v Glynn (2002) 82 SASR 426.
[44] R v PNJ(No 2) (2007) 99 SASR 1 at [33] per Gray J, Duggan J concurring.
It seems to me that here, while the applicant is undoubtedly labouring under a number of medical problems, the significance of which should not be discounted, his condition is not such that it would be oppressive, or offend against common humanity, for him to face trial in respect of very serious charges against three complainants.
Dr Van Dissel has been the applicant’s general practitioner for some 15 years. He expressed concerns about the applicant’s ability to cope with the rigours of trial. He is a careful, sympathetic general practitioner who no doubt has his patient’s interests in mind.
However, accommodation can be made for the applicant’s medical difficulties in the running of the trial, including sitting reduced hours, and providing periodic breaks in proceedings as needed. The applicant was accompanied by a carer for the purposes of the application and that arrangement can continue.
The delay here is a very long delay. The prosecution of the case is attended by a number of difficulties, and witnesses who might have been able to give salient evidence are no longer available to do so.
To repeat the observation of Cox J, a fair trial is not the same as a perfect trial, and it is certainly not the case that a trial will necessarily be unfair in the relevant sense unless all possible witnesses are available to give evidence.
It is necessary to consider the mechanisms available to redress the complaints identified by the applicant,[45] and to consider whether appropriate directions, the exclusion of evidence, or other procedural orders, would remedy the complaint of unfairness. If so, the court’s ability to administer justice impartially and unfairly would not be compromised and a stay should not be ordered.[46]
[45] Williams v Spautz (1992) 174 CLR 509 at 519-520.
[46] Dupas v The Queen (2010) 241 CLR 237 at 248-250.
Bearing in mind the nature of the allegations, such evidence as is available, and the directions I am able to give as to the significant forensic disadvantage suffered by the accused, I do not consider that the evidence is insusceptible of rational or safe forensic evaluation. The prejudice to the applicant, which I accept does exist, is not outweighed by the public interest in having the charges tried.
Whilst the applicant is of advanced years, and suffers a number of the medical conditions which accompany such advanced years, his various conditions appear to be reasonably well controlled. There is no suggestion of any loss of acuity of mind. Neither the delay, nor the loss of potential evidence, nor the applicant’s medical condition, individually, or in combination, are such as to warrant the granting of a stay.
I refuse the application.