R v James Patrick Jennings

[2010] NSWDC 145

CITATION:	R v James Patrick Jennings [2010] NSWDC 145
HEARING DATE(S):	12/07/2010, 13/07/2010, 16/07/2010
JUDGMENT DATE:	16 July 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Toner SC DCJ
DECISION:	I dismiss the application.
CATCHWORDS:	Permanent Stay Application
LEGISLATION CITED:	s.79(2), s.101 or s.137 Evidence Act s.81 Crimes Act
CASES CITED:	Jago v The District Court of NSW (1989) 168 CLR 23 Murphy v R (1989) 63 ALJR 422 R v McCarthy McDonald and Isaksen NSWCCA 12 August 1994 unreported R v Tolmie NSWCCA 7 December 1994 unreported Barton v The Queen (1980) 147 CLR 75 The Queen v Glennon (1992) 173 CLR 592 Barron v AG (1987) 10 NSWLR 215 Regina v Basha (1989) 39 ACrimR 337 Regina v Laurie Peter Helmling CCA, 11 November 1993, unreported Regina v George Adler CCA, 11 June 1992, unreported Regina v Anthony Richard Goldburg CCA, 23 February 1993 Regina v David Anthony McCarthy CCA, 12 August 1994, unreported Barker v Wingo (1972) 407 US 514 United States v Von Neumann (1986) 474 US 242 Bell v DPP [1985] AC 937 Herron v McGregor, at 252 Reg v Clarkson Watson v Attorney-General (NSW) (1987) 8 NSWLR 685 Carver v Attorney-General (NSW) (1987) 29 ACrimR 24 Barker v Wingo (1972) 407 US 514 R v Littler (2001) 120 ACrimR 512 Longman v The Queen 1999 168 CLR 79 R v Edwards (2009) 255 ALR 399 RWO [2002] NSWCCA 133
PARTIES:	R v James Patrick Jennings
FILE NUMBER(S):	2009/61262
COUNSEL:	Counsel for the Crown: Mr E Crespo Counsel for the Accused: Mr D Farmer
SOLICITORS:	Solicitor for the Crown: Mr A Charleston Solictior for the Accused: Mr G Elliot

JUDGMENT

1 James Patrick Jennings seeks a permanent stay of an indictment brought against him. That indictment charges six counts of indecent assault against a male contrary to s.81 of the Crimes Act which section has now been repealed and replaced by other provisions in the Act. The offences are said to have been committed between 1 February 1060 and 31 October 2061.

2 The Crown’s case against Mr Jennings is that during those times he was an ordained priest of the Catholic Church and a teacher at St Stanislaus’ College at Bathurst. Each of the complainants were pupils at that school and each of them were boarders there. The Crown alleges that the accused assaulted each of the complainants in various circumstances but mostly at night whilst each was in bed in a dormitory at the school. The indecent assault was fondling the penis of the particular complainant.

3 It is part of the Crown case that at relevant times the accused held a position within the school which was known as the “Dean of Discipline”. A summary of the way in which the Crown proposes to demonstrate its case has been provided to me and is Exhibit C.

4 I do not propose to incorporate the whole of it into these reasons. I think it is fair to divide the Crown case up in the following ways: -

a. Direct evidence of the complainants of indecent assaults upon them by the accused.

b. Evidence of other acts which are not the subject of charges against some of the complainants, being TL and RL.

c. Eye-witness evidence of activities of the accused which the Crown says are consistent with an indecent assault on DP as charged. That evidence would come from TC.

d. Evidence of activities of the accused within the Junior Dormitory at the College consistent with indecent assaults on other unnamed boys, albeit that there is no evidence that the activities did in fact constitute an indecent assault but involved the accused in the dormitory and pausing beside the bed of a boy or sitting on the edge of a boy’s bed. That evidence comes again from TC.

(e) Complaint evidence

This is said to come from TC where he says that DP told him what he alleges the accused had done to him. He says that “complaint” was made the day after the event. The Crown will also seek to lead evidence that TC reported what he had been told by DP to Father Keady who was then the present of St Stanislaus’ College. That report of TC was made the same day that he was told by DP what the accused had done to him.

(f) Evidence of indecent dealings between the accused and others not being a complainant. I am not sure at this stage whether this particular specie of evidence is to be led as “tendency” evidence and particularly what is said will be the evidence of TC about an incident which took place in the accused’s office and referred to between paragraphs 37 and 40 of the Crown’s case statement.

(g) What I anticipate will be tendency evidence from SM and FMcA, each of whom were students at St Vincent’s College at Bendigo, where they allege sexual interaction between them and the accused, the type of which was significantly different to what is alleged by the Crown in these cases against the accused.

(h) The Crown will assert that there is evidence to say that the accused was abruptly removed as a teacher from St Stanislaus’ and that there is correspondence which would indicate that the reason for his removal was because of improper sexual dealings with the boys and similarly that he was removed from St Vincent’s College at Bendigo for a similar reason.

In relation to that the Crown proposes to call Father O’Keefe who was the principal at St Vincent’s College at Bendigo to give reasons for the accused’s removal from that school.

(i) The Crown proposes to lead evidence of complaint made by HP and RL to others about the nature of the accused’s activities with them. It is not suggested that these complainants are contemporaneous with the activities but many years later. I do not know whether the Crown proposes to lead this evidence or attempt to lead this evidence as “complainant” evidence or to rebut a suggestion of recent invention.

(j) The Crown also has evidence it proposes to lead from SM of his complaint to a Reverend Hayes in the late 1990s of the treatment he received at the hands of the accused at St Vincent’s College Bendigo in the 1960s and that those complaints were made to the Reverend Hayes in the late 1990s.

(k) The Crown proposes to lead evidence from Father Cooney who spoke to the accused in 2003. Father Cooney was the Provincial of the Vincentian Order and was dealing with the complaint of SM. As I understand it Father Cooney will give evidence that he put the allegation of SM to the accused who denied it.

(l) The Crown proposes to call a psychologist, Shane Wall, who it says was appointed as a mediator to mediate the complaint between SM and the Vincentians or the Church generally. The Crown will seek to lead evidence from Wall that in effect the accused acknowledged what he had supposedly done to SM which the Crown says is an admission to support its tendency case.

(m) The Crown will lead evidence of what it says is an admission by the accused contained in a document known as a Petition for Dispensation from the Priesthood dated 30 January 1976 where in answer to question 18, the accused said that the reason for his transfer from St Stanislaus' was: -

Because of an undue familiarity problem with one of the students.

(n) Lastly, the Crown proposes to call evidence from Associate Professor Quadrio pursuant to s.79(2) of the Evidence Act in relation to general questions of the development and behaviour of children who have been victims of sexual offences in various ways.

5 I have been told and have anticipated that there will be a number of objections to much of that evidence. I have been told by Mr Farmer, on behalf of the accused, that if the matter goes to trial he will be objecting to evidence which the Crown seeks to lead as tendency evidence where a notice has been given. I would anticipate that he will object to the evidence which is said to be “complaint” evidence where it relates to complaints said to have been made by complainants long after the events which give rise to these charges.

6 I anticipate that the accused will object to the evidence of Associate Professor Quadrio.

7 I expect the applicant will object to various letters which the Crown will seek to tender as business records where he is not the author or addressee but which contain material which could relate to the activities charged by the Crown. The objection will seek an exercise of the s.137 discretion.

8 It would appear that the allegations which gave rise to these charges were first made against the accused in about October 2008. In June 2007 various allegations had been made apparently in and around Bathurst as to the conduct of various priests who were teachers or employed variously at St Stanislaus’ in the 1960s. The police commenced an investigation.

9 In September 2008 a number of people were arrested and charged with offences which are not dissimilar to those now confronted by this applicant. That event attracted significant publicity.

10 Subsequent to that, the police were contacted by TC and told something by him alleging that this applicant had indecently assaulted DP. This was the first mention to police, as I understand it, of any allegation against the accused.

11 During the course of their investigations the police executed a number of search warrants including warrants which permitted search and seizure of records of St Stanislaus’.

12 Detective Sergeant Grassick is the officer in charge of this investigation. He gave evidence before me and said that police had seized from the college employment, infirmary and some student records, but he noted that the staff records relating to those employed in any capacity at the school in the 1960s are not within the materials seized by police or found by police nor were there any student records relating to pupils who were at the school at the relevant time. They did find school magazines for the relevant period which contained various class photographs.

13 Detective Sergeant Grassick said in the course of this broad investigation police have interviewed about 2,500 people. Some have declined to give statements to the police, others have not been able to say anything of significance and others have given statements to police. Some, particularly provincials of the Vincentian Order of which the applicant was a member have been electronically interviewed as have Father O’Keefe and Father Regan.

14 One of the reasons given by Detective Sergeant Grassick for taking that course was that those people were potentially liable to prosecution themselves for events surrounding these allegations, and in particular for the offence of misprision of a felony.

15 Since these events a number of people who could have given evidence relating to these charges have died, including Father Keady, who was the President of the St. Stanislaus’ College in 1961. I have before me an affidavit of the applicant and he also was cross-examined before me on it.

16 At paragraph 17 of that affidavit he said the following: -

In about October 1961, I recall speaking to Father Keady. I do not recall the exact words of the conversation. He asked me whether I was ‘aware of’, or ‘had heard’ of, ‘a rumour’ ‘to do with a student’. Father Keady didn't provide me with any details of the subject of the ‘rumour’. Again, although I do not recall my exact words, I denied any suggestion that I had done anything improper. Some days later, Father Keady told me something like ‘I have not been able to find out anything about the rumour’. He also said that he had a discussion with the Provincial, Father Wilkinson, Father Keady did not tell me what had been said during his conversation with Father Wilkinson. Father Keady did tell me, however, that it had been decided that it would be best for me to leave the College. I was very disappointed with the decision to transfer me. Father Keady also told me that he believed that I had not done anything wrong.

17 At paragraph 18 of his affidavit he said that he has received two letters. He said that the first he saw of these letters was when he saw the police brief of evidence served upon him relatively recently. He said that Father Keady did not speak to him in relation to the content of these letters and certainly did not say to him that he had spoken to Bishop Norton who apparently was the author of one or both of those letters. The letters were addressed to Father Wilkinson who was apparently the Provincial of Vincentians at the time but I am not aware as to whether either of those men are still alive. I understand the Crown intends to tender those letters against the accused if the case against him proceeds.

18 I suspect that it is part of the Crown case that the applicant’s abrupt departure from St Stanislaus’ at the end of 1961 is of relevance and consistent with the allegations that the Crown makes against him.

19 Mr Jennings notes in his affidavit that a number of people, including Father Keady, are now dead. They include James O’Neill who was the College President between 1959 and 1961 at which time the applicant was a teacher and/or Dean of Discipline at St Stanislaus’ and Reginald McDonald, William Cantwell and John McMahon who are all priests and at the school.

20 He also notes that there were other priests at St Stanislaus’ at the time but he cannot remember them now.

21 In essence, the applicant says that in the absence of contemporaneous records as to his movements and activities at St Stanislaus’ during 1960 and 1961 he is left to answer these charges with a bare denial. He can, of course, recall his broad movements during that period and the positions he held but has no recollection and understandably so as I understand it of particular activities which might assist in reinforcing an answer to the Crown’s cases against him.

22 I note that the charges are framed as being between relatively wide dates. In the case which alleges indecent assault of HP the dates are between 1 February 1960 and 31 December 1960 and in relation to each of the others between 1 February 1961 and 31 October 1961. I would understand that the last of those dates, namely 31 October 1961, was a date shortly after the applicant left St Stanislaus’. I am not aware as to the significance of the 1 February 1960 and 1 February 1961 other than I suspect that it was the first day of the school term.

23 The application is founded upon a number of assertions which it is said constitute an abuse of process in that because of them the applicant cannot receive a fair trial. In brief, it is said that the delay between the events and the commencement of the prosecution is excessive. There is no explanation for the delay and that the delay was not caused by the applicant in any way at all.

24 It is said that a consequence of the delay has been actual prejudice to the applicant which includes the absence of both potential witnesses and records. It is also asserted that there has been a contamination of the recollection of the complainants and witnesses which it is said was generated by contact between the various complainants and thus a blurring of the nature of the allegations made and contact between the complainants and others who were at the school who have given renditions of events of 50 years ago which again has distorted the recollection of each, all or some of the complainants.

25 Further, it is said that there is uncertainty in relation to the claims made and that is said to be demonstrated by contradictions within the various statements made by the complainants to police. In addition, it is said that there has been significant media coverage of these charges and those related to it, namely those brought against other members of the Vincentian Order who were teaching at St Stanislaus’ College at about the same time.

26 The media coverage has been in every form: radio, press, television and the Internet.

27 The applicant has also given some evidence as to his ongoing health problems which include that he has some heart problems which required the implantation of a pacemaker. I have before me reports from Dr Andrew Thomson dated 16 June 2010 and another from Dr Dubetz which are annexed to Mr Jennings’ affidavit. I conclude that albeit that he has those problems I am of the view that they play no role in this application, particularly given the conclusions of Dr Thomson who says at points 3 and 4 of his letter: -

3. Mr Jennings is able to participate in a criminal trial.
4. There has been no recent decline in Mr Jennings’ health.

28 The doctor does note that a criminal trial may increase the frequency of Mr Jennings’ palpitations and/or atrial fibrillation. I should note that any criminal trial represents a significant stress on an accused. I also bear in mind that the accused is now 77 years of age and that of itself means that the burdens upon him by the fact of the trials alone must be of additional significance for a man of his relatively advanced years.

What is to be stayed if the order is made?

29 The simple answer is each of the charges contained in the indictment.

30 It is trite to say that the State brings the charges through the agency of the Director of Public Prosecution and how it pleads its case is a matter for it.

31 Similarly how it proposes to prove its case is again a matter for the Crown. The question arises however whether it is a relevant consideration to an application of this kind to examine the way in which the Crown anticipates presenting its case to determine whether the indictment ought to be stayed as an abuse of process in that a

... continuation of the proceedings would be so unfairly oppressive that it would constitute an abuse of process (per Deane J in Jago v The District Court of NSW (1989) 168 CLR 23 at 60).

32 In that same case Brennan J noted at [46]:-

A power to ensure a fair trial is not a power to stop a trial before it starts. It is a power to mould the procedures of the trial to avoid or minimise prejudice to either party.
…
Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes ( Murphy v R (1989) 63 ALJR 422
…
the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.

33 See also R v McCarthy McDonald and Isaksen per Gleeson CJ NSWCCA 12 August 1994 unreported.

34 It is worthwhile at this point to recite a fair digestion of the test to be applied when considering an application such as this. They are conveniently contained in the judgment of Hunt CJ at CL in R v Tolmie NSWCCA 7 December 1994 unreported at page 4:-

As to these matters, it is necessary to examine briefly the basis upon which a permanent stay will be granted. To justify such a stay, there must be a fundamental defect which goes to the root of the trial of such a nature that nothing which the trial judge could do in the conduct of the trial could relieve the applicant against its unfair consequences: Barton v The Queen (1980) 147 CLR 75 at 111; Jago v District Court (1989) 168 CLR 23 at 34, 75; The Queen v Glennon (1992) 173 CLR 592 at 615-615. The right to a fair trial is entrenched in the criminal justice system, to ensure that innocent people are not convicted of criminal offences, and a stay of proceedings may be granted to prevent an unfair trial: Jago v District Court (at 29, 56, 72). But that right must be balanced against the right of the community to expect that persons charged with serious criminal offences are brought to trial: ibid (at 33,72). In that sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed: ibid (at 30). The grant of stay of proceedings is discretionary, and the circumstances will usually have to be extreme for such relief to be given: ibid (at 31, 60, 75); The Queen v Glennon (at 605, 615-616). The onus lies on the applicant for a stay to demonstrate that the disadvantage or prejudice which he would suffer by the refusal of a stay is in the relevant sense unacceptable, to the extent that the trial would be unfair: Barron v AG (1987) 10 NSWLR 215 at 219,233; Regina v Basha (1989) 39 ACrimR 337 at 338; Regina v Laurie Peter Helmling (CCA, 11 November 1993, unreported) at 4).

35 His Honour continued at page 5 as follows:-

There are many cases in which this Court has held that a permanent stay should not be granted simply because witnesses are unavailable or lost: Regina v George Adler (CCA, 11 June 1992, unreported) at 2-4; Regina v Anthony Richard Goldburg (CCA, 23 February 1993) at 4-6; Regina v Laurie Peter Hemling (at 4-8); Regina v David Anthony McCarthy (CCA, 12 August 1994, unreported) at 11-13. It is unnecessary to discuss them all yet again. In those cases, it was known what evidence could be given by the missing witness, and that the accused suffered some prejudice as a result of its loss. In the present case, there is nothing known of what evidence – if any – these two witnesses could have given. It is entirely speculative that they could give any evidence at all which was relevant to the issue of identification, let alone that the respondent will suffer some prejudice as a result of its loss.

36 Exhibit C is an outline of what the Crown proposes to prove. I must add to that that the Crown’s Submissions significantly add to the body of evidence that the Crown proposes to tender, but it is fair to say that the additional material identified by the Crown in its submissions falls within the general categories that I have identified elsewhere in these reasons.

37 As all the authorities note in varying forms: -

In any event a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone would accordingly be very rare.

To justify a permanent stay of criminal proceedings there must be a fundamental defect which goes to the root of the trial ‘of such a nature that nothing but a trial judge can do in the conduct of the trial can relieve against its unfair consequences’.

Jago per Mason CJ at [34].

38 In Jago Deane J adopted part of the judgment of Kirby P in the Court of Appeal in the same proceedings. He said at [60] the following: -

In his judgment in the present case, Kirby P identified five main heads of relevant circumstances and considerations to which a court should advert in deciding whether proceedings should be stayed on the ground that the effect of delay on the part of the prosecution is that any trial will necessarily be an unfair one in all the circumstances. As his Honour indicated, the first four of them can be traced to the opinion of the Supreme Court of the United States (delivered by Powell J) in Barker v Wingo (1972) 407 US 514 (see also United States v Von Neumann (1986) 474 US 242; Bell v DPP [1985] AC 937, at 951-952; Herron v McGregor , at 252; Reg v Clarkson , at 968; Watson v Attorney-General (NSW) (1987) 8 NSWLR 685, at 697-698). I would slightly adapt them to read:

(i) the length of the delay;

(ii) reasons given by the prosecution to explain or justify the delay;

(iii) the accused's responsibility for and past attitude to the delay;

and,

(iv) proven or likely prejudice to the accused.

The fifth is the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime (see Reg v Clarkson , at 972; Carver v Attorney-General (NSW) (1987) 29 ACrimR 24, at 32). Those five "heads" provide convenient reference points for answering the question whether the effect of a delay in a particular case is such as to bring about a situation where any trial will necessarily be an unfair one from the accused's point of view or a situation where the continuation of proceedings would be so unfairly oppressive that it would constitute an abuse of process.

39 In considering the second of those categories his Honour noted at 61: -

… (ii) (prosecution's explanation) will involve account being taken of the time when relevant material was first known to the authorities and whether the charge is a complex or simple one. It will also involve consideration of what is reasonable in the context of the limitations of institutional resources

40 Here the allegations are straightforward.

41 As I understand the application no complaint is made of delay on the part of the authorities between the time when they became aware of the complaints made against this accused and bringing charges against him. It is not suggested that proceedings once launched have been anything other than pursued with reasonable expedition. As I understand the applicant’s position the only delay about which he complains is that caused by in effect the failure of the complainants to advise the relevant authorities of what they say had happened to them or those within the church who were apparently told of what each of the complainants or some of the complainants allege reporting the matters to the police at the time.

42 Even though the Crown attempts to sheet home some of this delay to the applicant I find that submission to be without merit (see para 35 of the Crown’s submissions).

43 The explanations given as to why these complainants did not bring these matters to the attention of police earlier is exemplified by the evidence of RL who is the complainant in Count 6, namely that he had thought he had put the matter behind him and out of his life and in effect he simply did not want to re-agitate it. When he did and when he reported it to police he became quite dismayed and upset and angry.

44 In any event, to my mind, the absence of any other explanation other than those that I have identified does not seem to play upon the question to be answered in this case, namely is the failure of the prosecution to advance any other cogent explanation for delay a cause of prospective unfairness to the applicant if this trial is to proceed. I find that there is nothing that springs from this topic which would demonstrate that outcome at all. It is the applicant who bears the onus of proof and to my mind nothing was put to me that would suggest that a failure on the part of the Crown to explain the delay in complaint by the complainants could constitute a basis for generating unfairness in any trial of the accused on these charges.

45 As is noted within the authorities, the absence of explanation, namely the failure of the complainants to complain as compared to a failure of the prosecution to explain a delay on the part of the authorities once they became aware of the complaints, is of lesser significance than any explanation of the authorities to explain delay on their part. As I have noted there is no sustainable complaint on the part of the applicant which would suggest delay on the authorities part once they became aware of the complaints made by each of the complainants.

What is the prejudice to the accused?

46 The accused through his counsel asserted a variety of potentially prejudicial features of this case. Earlier in these reasons I have identified them.

47 It seems to me that albeit that one could conceive quite readily of circumstances in which a formidable case could be mounted for a stay because of the death of potential witnesses, it would require some cogent identification of the nature of the evidence that has been lost by the death of that witness. Elsewhere in these reasons I have identified the roll of the dead who potentially could give evidence in this case. Nothing was put to me as to what it is that they could have said to assist the accused in answering these charges.

48 The Crown seeks to tender correspondence that I previously identified where either the author or the addressee is now dead. He proposes to tender this material as business records of the Vincentian Order.

49 During the course of argument I indicated, albeit that they might be susceptible to being admitted into evidence because they are business records and they are relevant to a fact in issue. From what I presently know the Crown would have some difficulty in persuading me to permit the evidence because the inability of the accused to cross-examine those who were involved in the correspondence would represent a danger of unfair prejudice to him which clearly weighs the probative value of the material. At best the contents are hearsay.

50 I note also that objection is taken to the material contained in a “tendency notice” that the Crown has given to the accused. I have not seen that notice but I understand that within it is material relating to the two potential witness, SM and FMc to whom I have referred earlier in these reasons.

51 I have not heard argument yet in relation to that topic but it does seem to me, and bearing in mind the passage that I cited from Brennan J’s judgment in Jago above, that the Crown may well have some difficulty in leading that evidence at trial. Again, in exercise of my discretion, pursuant to s. 101 or s.137 of the Evidence Act. There may be further consideration of that topic based upon whether the potential evidence of each of those men does in fact demonstrate a “tendency” or a relevant tendency in the accused at the time he is said to have committed the offences which are charged. I note in passing no charges have been preferred against this accused in relation to the allegations made by SM or FMcA in this or any other place. I would expect that proceedings would be brought against him in Victoria although as I understand it no such charges have to date been laid.

52 Some of the evidence which is said to be “complaint” evidence will again need to be examined carefully as to whether it is in fact admissible. At first blush it seems to me that “complaint” evidence which is of the complainants speaking to others years later cannot fall within the common law exception to the hearsay rule permitting evidence of “fresh complaint”.

53 It may be that at some stage during the trial this topic can be revisited, perhaps under a heading of the Crown case in response to an anticipated allegation of “recent invention” but to my mind it does not represent evidence of complaint within the common law exception.

54 The evidence of TC wherein he says that DP complained to him shortly afterwards does not represent any unusual problem for the accused affected by the passage of time. It is the type of evidence regularly presented in trials of this type and I fail to see how simply because it was a complaint made 50 years ago particularly prejudices the accused by that reason alone.

55 Mr Farmer on behalf of the applicant has suggested that there is a possibility of contamination of the evidence of each of the complainants. It is suggested that that springs from the possibility that they have spoken to each other or others who were at school with them and/or have been influenced by the publicity given to cases which have been brought against various teachers in the last few years.

56 Each of the complainants has given evidence before me and each has denied that they have spoken in any significant way to anybody else about these cases or at least in a way which would reveal that their recollection has been affected. Mr Farmer suggested that there is a possibility that each of these allegations is a fantasy but that each of the complainants have come to believe them as truth over time. I suppose such a process is possible but there is absolutely nothing within the material that I have seen or evidence I have read or heard which would suggest that is what has taken place.

57 It is undoubtedly true that a very significant body of documentary material which was contemporaneous with these events no longer exists. That includes the records of the College relating to its employees, including the applicant. The records of the students, including any admissions or treatment at the College’s infirmary.

58 I can conceive that it may be possible in certain circumstances that that fact could be of great significance to an accused in mounting an answer to prosecutions of this type. However, the accused has not pointed to anything which may have been within that material which would have assisted him in this case beyond mere speculation. I am mindful of what was said in Barker v Wingo (1972) 407 US 514 I think to the effect of what is forgotten can rarely if ever be recalled. The same of course is true of documentary material.

59 I was taken by the applicant in R v Littler (2001) 120 ACrimR 512. I am of the view that that case is clearly distinguishable from this. The primary reason for the stay in that case was that Mr Littler’s medical condition impaired him from being able to meet the charges preferred against him. True enough this was in the context of a very substantial delay between the events which gave rise to the charges against him and his trial but, nonetheless, he endured medical conditions which impaired his capacity to recall. That is not the case with Mr Jennings.

60 Similar factors applied in RWO [2002] NSWCCA 133. The delay in that case between the events giving rise to the charges and being brought to police attention was between 31 and 33 years. As Justice Bell said at para [65]: -

The delay in this case has been very great indeed. However, commensurate delays, even greater delays, have not of themselves been held to be a sufficient basis for a court refusing to exercise jurisdiction

She also referred to Mason CJ ion Jago at 33:

… Where delay is the sole ground of complaint, an accused seeking a permanent stay must be 'able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute': Clarkson [1987] v R, at p 973.

61 Also see R v Edwards (2009) 255 ALR 399 at 31.

62 It ought to be borne in mind that in this case the jury will be given a Longman direction. See Longman v The Queen 1999 168 CLR 79 at 91. The conventional Longman direction is as follows which I have extracted from the Bench Book.

There is a warning I must give you relating to this issue of the absence of any [or delay in] complaint being made by [the complainant].

It is most important that you appreciate fully the effects of delay [or absence of complaint] on the ability of [the accused] to defend [himself/herself] by testing prosecution evidence [or bringing forward evidence] in [his/her] own case, to establish a reasonable doubt about [his/her] guilt.

In this regard, I refer to the following specific difficulties encountered by [the accused] in testing the evidence of the prosecution [or in adducing evidence] in [his/her] own case … [these specific difficulties should be highlighted in such a way as to make it clear that delay, for which the accused had not been responsible, had created those difficulties. All additional significant circumstances require comment. These may include:

· the delay in instituting the prosecution
· the possibility of distortion in human recollection
· the nature of the allegations
· the age of the complainant at the time of the allegations having regard to the current and previous forms of ss 165A and 165B Evidence Act
· the prosecution case is confined to the evidence of the complainant, and
· any unusual or special features.]

These difficulties put the accused at a significant disadvantage in responding to the prosecution case, either in testing the prosecution evidence, or in bringing forward evidence [him/herself] to establish a reasonable doubt about [his/her] guilt, or both.

The delay means that [the complainant’s] evidence cannot be as fully tested as it otherwise might have been. Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that [the complainant’s] memory for details would have been clearer. This may have enabled [his/her] evidence to be checked in relation to those details against independent sources so as to verify it, or to disprove it. [The complainant’s] inability to recall precise details of the circumstances surrounding the incident(s) makes it difficult for the accused to throw doubt on [his/her] evidence by pointing to circumstances which may contradict [him/her]. Had the accused learned of the allegations at a much earlier time [he/she] may have been able to recall relevant details which could have been used by his counsel in cross-examination of [the complainant].

Another aspect of the accused’s disadvantage is that had [he/she] learned of the allegations at a much earlier time [he/she] may have been able to find witnesses or items of evidence that might have either contradicted [the complainant] or supported [his/her] case, or both. [He/She] may have been able to recall with some precision what [he/she] was doing and where [he/she] was at particular times on particular dates and to have been able to bring forward evidence to support [him/her].

You should also take into account that because of the delay the accused has lost the opportunity to bring forward evidence from [set out specific items of evidence lost or no longer available].

Because the accused has been put into this situation of significant disadvantage [he/she] has been prejudiced in the conduct of his defence. As a result, I warn you that before you convict the accused you must give the prosecution case the most careful scrutiny. In carrying out that scrutiny you must bear in mind the matters I have just been speaking about — the fact that the complainant’s evidence has not been tested to the extent that it otherwise could have been and the inability of the accused to bring forward evidence to challenge it, or to support [his/her] defence.

63 I would anticipate giving a Murray direction in relation to each matter and that direction is in the following form, which again I take from the Bench Book, and which indicates the nature of the direction that will be given as follows: -

Wherever the Crown seeks to establish the guilt of an accused person with a case based largely or exclusively on a single witness it is important that the jury are told that they should exercise caution.

That is what I am going to tell you now.

You must exercise caution before you convict the accused because the Crown case largely depends on you accepting the reliability of the evidence of a single witness.

This being so, unless you are satisfied beyond reasonable doubt that the [ essential Crown witness/complainant ] is both an honest and accurate witness in the account [ he/she ] has given, you cannot find the accused guilty. Before you can convict the accused, you should examine the evidence of the [ essential Crown witness /complainant ] very carefully in order to satisfy yourselves that you can safely act upon that evidence to the high standard required in a criminal trial.

That caution is not based upon any personal view that I have of the [essential Crown witness/complainant]. I told you at the outset of this summing up that I would not express my personal opinions on the evidence. But in any criminal trial, where the Crown case relies solely or substantially upon the evidence of a single witness, a jury must always approach that evidence with particular caution because of the onus and standard of proof placed upon the Crown.

I am not suggesting to you that you are not entitled to convict the accused upon the evidence of the [essential Crown witness/complainant]. Clearly you are entitled to do so but only after you have carefully examined the evidence and satisfied yourself that it is reliable beyond reasonable doubt.

In considering the [essential Crown witness’/complainant’s] evidence and whether it does satisfy you of the accused’s guilt, you should of course look to see if it is supported by other evidence.

64 Bearing in mind then the principles that I have identified above, I am of the view that rulings in relation to the admissibility of evidence can be given in this case and directions given to the jury, which in all the circumstances will allow the accused a fair trial and accordingly I dismiss the application.