R v K No. DCCRM-99-215 Judgment No. D124

[1999] SADC 124

R v K
[1999] SADC 124

Judge Herriman
Criminal

1. By a Rule 8 application, the accused has sought an order that the trial of this information be permanently stayed.  Other relief is also sought in that application, but I will deal with that separately.

2. I should make two preliminary observations with respect to that application.

(1)... As I interpret Rule 8.02, such an application shall “unless a judge otherwise directs” be filed and made returnable before the accused is arraigned in the court.  That did not occur here and, instead, the application was filed on about 15 September 1999, approximately one week before trial.  It seems to me that the clear purpose of the rule is to deal with applications of this kind at an early stage and well before they are listed for trial.  The reasons for doing that are obvious.  Nevertheless, the prosecutor took no issue with this and I therefore decided to hear the matter.

1. The same sub-rule further provides that the application shall “be supported by any affidavit upon which (the accused) relies ...”.  In this instance, no affidavit was lodged with the application, but at the hearing I did receive a short affidavit of the accused’s solicitor deposing to a matter relating to a potential witness, Donaldson.  I mention the matter only because it appeared to me that if the accused wished to raise any matters that did not otherwise emerge from the prosecution documents, then they would need to have been dealt with in such an affidavit.  I was told that, in this instance, the accused did not wish to rely on any other matters.

1. The grounds of the accused’s principal application are that to allow the trial to proceed on any count would be an abuse of process and the specific bases for that claim were as follows (I will not deal with them in the order in which they are alleged):

(1)... “The prosecution case is very weak.”  Defence counsel addressed me on that issue and pointed to some matters which obviously would be under attack at trial.  He also referred me to the case of Austin (1995) 84 A Crim R 374, from which it might be inferred that the trial judge, in considering a similar application, had regard to the strength of the prosecution case. I was not referred to any other authority suggesting that the strength or weakness of the prosecution case is a relevant factor in a determination of this kind, but it is sufficient for me to say that, in this case, I am not satisfied that, taken at face value, the evidence of the prosecution can be so characterised.

1. “It is oppressive to the applicant for the prosecution to proceed.”  It was not clear to me from submissions whether this was really put forward as a separate ground or whether it was not part of the alleged unfairness arising out of the other grounds.  In all the circumstances, it seems to me that it falls to be considered in connection with those other grounds and I will not treat it separately.

1. “The evidence has not been adequately investigated.”  I was also unsure as to what to make of this ground.  Defence counsel pointed to the absence of some original notes, but there was an obvious explanation for that and he was otherwise at pains not to generally criticise the conduct of the prosecution in this matter.  His main criticism really related to the complainant’s delay and role in reporting it.  I will come to that topic.

1. “There has not been a sufficient preliminary hearing.”  It does not seem to me that this is a proper ground for an abuse of process application.  I was told that an application had previously been made for examination of witnesses at the committal, but had been refused.  Subsequently, further charges had been added to the information and there had been no opportunity to apply for any witness examination in relation to them. 

The general circumstances of the matter and the addition of the further charges may provide some basis for a further hearing in this matter, by way of a Basha enquiry, but I am not otherwise satisfied that the alleged ground, in the particular circumstances, supports a claim of abuse of process.

1. In essence, the application relies upon the undoubted delay which has occurred since the events charged and these proceedings, and some of the consequences of that delay to which I will specifically refer.

1. That delay, it is said, falls into two categories:

   (a).... depending upon the nature of the complaint made, a delay of seven to nine years between the last alleged incident and the complainant making non-specific complaints to a friend and then to her mother in October/November 1992;

   (b).... a further delay between October/November 1992 and the date when the complainant informed the police of her allegations, in October 1998.

2. Both counsel conceded that the appropriate authority governing the matter is Jago v District Court of NSW (1989) 168 CLR 23. On the basis of that decision, defence counsel allowed that delay simpliciter would rarely be a proper ground for the relief sought (albeit that Jago did not exclude that possibility), but it was contended that the delay in this case has given rise, and will give rise, to prejudice to the accused which simply cannot be cured.  That prejudice, it contended, arises in the following manner:

(1)...... When the complainant first contacted the police in October 1998, she made allegations about what I will, for the sake of brevity, refer to as sexual abuse by the accused, which allegedly took place prior to 3 December 1982.  She informed Detective Senior Constable Seja that the accused was then (in October 1998) stalking her, leaving correspondence at her home, making unwanted telephone calls and, further, that she believed he had possession of indecent photographs of her.

(2)...... By virtue of amendments to section 76a of the Criminal Law Consolidation Act, it was then, and it remains, the case that statutory periods of limitation prevented any charges being laid against the accused in respect of any of the alleged sexual abuse occurring prior to 3 December 1982.

(3)...... Seja informed the complainant of that fact, but said that the police would nevertheless follow up the allegations, he loosely described as “stalking”, and the existence of the photographs.

(4)...... Seja’s role in the investigation was then taken over by Acting Detective Sergeant Richardson, who spoke to the accused in October 1998.  The accused then denied any sexual contact with the complainant at any time, denied knowledge of, or involvement in, any photographs or in any harassment of her.  In those particular circumstances and knowing of the statutory limit for any proceedings, Richardson saw no need to and did not make any notes of that conversation.  He records in his statement, however, that as he left the premises after it, the accused separated from his then wife and “stated that some ‘things’ had gone on between he and the complainant but ‘not that much’”. 

The conversation went no further than that and that remark was not recorded, either.

(5)...... On learning of these developments, the complainant apparently then sought a summary protection order and signed an affidavit in support of it on 2 November 1998.  She did not then specifically identify in it the matters the subject of the information.

(6)...... On 2 November 1998, the complainant advised Richardson that in the course of making her application for a summary protection order, she had identified some acts of sexual conduct by the accused post-dating 3 December 1982. 

(7)...... On 9 November 1998, the complainant was formally interviewed by Richardson and described the incidents which are reflected in the first four counts on the information and which allegedly post-dated 21 December 1982.  She said they occurred whilst she was staying at the accused’s house during school holidays and after the birth of the accused’s second child.  In that same statement, she identified further acts which allegedly took place, during that same stay, at Somerton Beach.  They led to counts 5, 6 and 7 on the information.  She otherwise said that “the abuse stopped in 1983”.

(8)...... Subsequently, on 17 November 1998, the complainant re-attended at the Sexual Assault Section.  She then said that she recalled another incident which occurred in 1985 and spoke of events surrounding the accused’s 30th birthday party on 16 February 1985.  She said she had identified that particular date by referring to his ex-wife’s diary for the date of the party.  Having provided that statement on 17 November, she concluded by saying that “this is the last time that I can remember that David abused me”.

(9)...... Subsequently, on 6 March 1999, she re-attended at the Sexual Assault Section and described further incidents involving the accused, one allegedly occurring in his boat, another involving attempted anal sex and another a milk bottle.  The boat incident is not the subject of any count, but the attempt at anal intercourse is.

(10)... In the meantime, Richardson had interviewed the accused on 25 November 1998 and had subsequently arrested him.  It is sufficient to say that, in the course of that interview, the accused denied all allegations of sexual conduct with the complainant.

(11)... By consent, I was orally informed by defence counsel that, in the course of preparation of the defence, a request had been made of the prosecutor to disclose the identity of a person who had provided the complainant with psychological counselling.  In consequence, the prosecution provided the accused with the name of one Rosalie Donaldson, psychologist.  Defence enquiries of that practitioner then revealed that she did not have any independent recollection of counselling the complainant, nor did she have any records or case notes in her possession relating to the complainant.

1. The defence therefore contends, as follows:

A...... The very lengthy delay between 1982 (or 1985) and the reporting of the incidents in 1998 has caused the accused substantial prejudice in the conduct of his defence.  Even if delay simpliciter is not sufficient, it is a factor.  I accept that and will take it into account.

B.By virtue of his inability to access the notes of Ms Donaldson or any information that she may be able to provide, the accused has lost the opportunity to pursue this avenue of enquiry which might have assisted his defence.  In the circumstances disclosed to me, it seems very likely Ms Donaldson’s counselling notes would have existed at some point. 

In response to that contention, the prosecutor said that the accused would not likely have been able to gain access to those notes in any event, nor would they likely have assisted him. 

That is not a complete answer to the accused’s claim and his counsel properly said that the relevant factor is the lost opportunity to access them and that it is not appropriate to make a judgment about whether or not they might have assisted. 

In considering this ground, there was some discussion about the likely impact of section 67F of the Evidence Act on the accused’s access to Ms Donaldson’s notes or evidence, anyway, but defence counsel argued that it was a recent amendment and any bar to access might not have been there, but for the very delay of which he complained.  There was some force in that, although it is not to be presumed that a claim opposing their production on privilege grounds would not have succeeded.

A further matter to be considered is whether, even if the notes were available, they would necessarily have recorded details of the alleged abuse, in any event.  In the ordinary course, one would expect there would be some reference in them to the alleged background of abuse and substantial references to treatment and counselling, but beyond that, their contents would be mere speculation. 

I return to the central issue, however, that of the lost opportunity to pursue this avenue.  It appears to me proper to have some regard to the value of that loss in a particular case, otherwise it would always be available to an accused person to point to the absence of any witness as a “lost opportunity”. 

In the context of what I have discussed above, I will take into account that there has been a lost opportunity, but its value or, put another way, the extent of prejudice, can be no more than a matter of speculation.

C.The principal focus of defence counsel’s submission on this application related to the possibility - on which I have yet to rule - that the complainant’s allegations of sexual abuse by the accused pre‑dating 3 December 1982 will be treated as admissible at the trial, in this case not because of a propensity argument, which the prosecutor conceded is not available, but because it is evidence of guilty passion or otherwise what is characterised as relationship or background evidence.  In that respect, counsel referred to the case of Gipp (1998) 194 CLR 106. There is no need for me to discuss that authority at this point, other than to note that several other grounds of admissibility are canvassed in the judgments, including lack of surprise, failure to complain, opportunity, motive and so on.

The thrust of the defence submission on this was as follows:

(a).... assuming that evidence is admitted, there will be, before the jury, evidence of pre-3 December 1982 acts which the jury will know can never be the subject of charges against the accused;

(b).... there will also be evidence before the jury of those acts which are charged and which post-date 3 December 1982;

(c).... clearly, the defence will attack the circumstances of the complaints made by the complainant of incidents post-dating 3 December 1982;

(d).... the effect of all the evidence and that attack will be to highlight the pre-December 1982 conduct and the fact that the accused cannot be charged with it;

(e) .. no direction by the trial judge, however strong, can properly ensure that the jury does not make impermissible use of any pre-December 1982 conduct it finds proved, more so, defence counsel says, because of the alleged, but non-specific, admissions made by the accused about misconduct to the police officer Seja and to his sister;

D...... Finally, the defence pointed to the general prejudice arising from the delay, such as the ability of the accused to properly recall events occurring so long ago, or the possible loss of alibi evidence and so on.

Of course, any delay must always give rise to the possibility of prejudice and the prosecutor here frankly conceded that there would be some element of prejudice arising out the long delays which have occurred.  Having said that, however, the circumstances of this particular matter are that the accused and the complainant were uncle and niece respectively and, on all the evidence, saw each other frequently, including at or about the times allegedly the subject of some of the counts.  No specific prejudice was alleged in connection with this ground.

In connection with the delay and resulting prejudice, I was referred to a number of cases, but, in particular, to Jago (above), Karounos (1995) 63 SASR 451, DPP (C/W) v Polyukovich (No. 1) (unrep. per Cox J delivered 22.12.92, Judgment No. S3782), Davis (1995) 81 A Crim R 156, Austin (1995) 84 A Crim R 374, Longman (1989) 168 CLR 79 and Dunn (unrep. per Judge Sulan, District Court of South Australia, D3756/98).As His Honour Cox J noted in Polyukovich:      

“It would be a rare case in which mere delay, even a very long delay, would lead to a stay in the absence of some evidence of actual prejudice to the accused.  There are cases in which judges have used the expression ‘presumptive prejudice’ to deal with those instances in which actual prejudice cannot be clearly proved but may perhaps be presumed.  With respect, the helpfulness of the expression may be doubted.  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 ... Every case has to be judged on its own facts ...” (pp 9-10).

1. It is idle to attempt to compare the periods of delay in various matters and the reasons for them and then to examine the various types of prejudice that may be said to have arisen in one case or another.  Each matter will vary widely in its circumstances and must be individually assessed.  I was not here referred to any matter where circumstances of any real similarity had arisen, so the decided cases have limited value beyond the principles established in them.  Defence counsel argues that this case stands on its own because of the unusual circumstance of the statutory bar on proceedings over any pre‑December 1982 conduct and the implications which he says arise from that.

2. I was urged by him to find that, in consequence of his foreshadowed attack on the complainant’s evidence, as to post-December 1982 conduct, the focus of the case will fall upon that conduct.  The necessarily careful and strong warning that must then be given to the jury about propensity reasoning will not, he says, obviate the risk the jury will nevertheless reason in that way or otherwise be tempted to deliver a compensatory-type verdict.

3. For her part, the prosecutor says that the issue of fairness touched upon by Cox J in Polyukovich applies with equal force to community interests in the trial and that, in principle, the situation in this case is no different from that which frequently occurs when evidence of other illegal acts is admitted at trial, albeit that those other acts are not charged.  The prosecutor contended that a jury, properly instructed, is in no different a position, whether the other matters are legally able to be charged or are simply not charged.

4. I keep in mind that the accused bears the onus in connection with this application and it is a heavy one as the order sought should only be made in exceptional circumstances.

5. In the end, I am not persuaded that they obtain here.  Whilst there will inevitably be some measure of general prejudice to the accused in the lost opportunity to access Ms Donaldson and in the time delay between the alleged events and these proceedings, I am not persuaded that their maintenance constitutes an abuse of process.  Further, I am not persuaded that the expectation placed upon a jury by reason of an appropriate direction as to uncharged acts of a kind similar to those with which the accused is charged is any different whether those other acts are simply not charged or, for statutory reasons, cannot be charged.  Clearly, a careful, perhaps even a strong, direction must be given in this case, but, in my view, a jury can then be relied upon to deal with the evidence in a proper fashion.

6. For all these reasons, this stay application is refused.