R v Kositzin - [2015] NSWDC 303

District Court

New South Wales

Medium Neutral Citation: R v KOSITZIN [2015] NSWDC 303
Hearing dates: 19/06/2015
Decision date: 13 August 2015
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Application for permanent stay refused.

Catchwords: Criminal - permanent stay of proceedings, delay, 'lost' evidence, health of the accused.
Legislation Cited: Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: Barton v The Queen (1980) 147 CLR 75
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Crampton v The Queen (2000) HCA 60
Jago v District Court of New South Wales (1989) 168 CLR 23
Longman v The Queen (1989) 168 CLR 79
R v Glennan (1992) 173 CLR 592
R v Kesavaragah (1994) 181 CLR 231
R v Littler [2001] NSWCCA 173
R v RWO [2002] NSWCCA 133
R v Tolmie (Unreported, NSWCCA, 7 December 1995)
TS v R [2014] NSWCCA 174
The Queen v Edwards [2009] HCA 20
Walton v Gardiner (1993) 177 CLR 378
Category: Procedural and other rulings
Parties: Director of Public Prosecutions - Crown
Nicolas Kositzin - offender
Representation: Counsel:
Mr P McGrath – Crown
Mr P Barham - Offender

File Number(s): 2013/326288

Judgment – Application for stay

Introduction

HIS HONOUR: Nicholas Kositzin (the ‘applicant’) has moved for a permanent stay of proceedings and other related orders, if needs be, in respect of the proposed prosecution of him by the Director of Public Prosecutions in relation to alleged sexual assaults said to be committed upon the complainant between January 1982 and July 1983, according to the most current indictment at "Akuna Bay", in other environs of the Hawkesbury River and at or near Mona Vale. The motion of the accused also seeks access to documents sought to be produced on subpoena if the application for a permanent stay of proceedings is unsuccessful. The applicant for a permanent stay of proceedings is opposed by the prosecution. The issue of the accused's access to subpoenaed documents has not yet been resolved having been put aside until the application for a permanent stay of proceedings is resolved.
The matter with which I am concerned came before me on Friday 19 June 2015. It is apparently a matter that had been in the list for some time. On 19 June 2015 the matter had been specifically listed before myself having previously being mentioned with a view to endeavouring to resolve the issues to be litigated. Unfortunately, 19 June 2015 was the last date I was sitting in Sydney for a period of seven weeks. The next week I was to go to Queensland for a conference conducted by the National Judicial College of Australia in respect of the Judicial Orientation Program for which I am on the Steering Committee. Thus, I was out of Sydney for a week for that. Then I was overseas for three weeks and then I have sat in Wagga for three weeks in a busy sittings. This was the first week I was back in Sydney. Thus, I listed the matter this morning at 9.30 with a view to delivering this judgment. I apologise to the parties for the delay but as they understood clearly on 19 June it was not possible for me to give judgment that day.

The evidence

The prosecution had previously filed an indictment containing 20 counts alleging various sexual assaults from indecent assaults to carnal knowledge of a stepdaughter to buggery committed by the accused. However, a further indictment is proposed to be filed reducing the number of counts to be prosecuted to 13 over the same period of time; that is, from 1 January 1982 until late July 1983.
A number of affidavits have been filed on behalf of the accused to which I will refer in a moment. Primarily amongst them is an affidavit from the accused's solicitor in support of the motion which produces or exhibits a great deal of material germane to the trial and also the application. Amongst those items exhibited annexed to that affidavit are the original indictment, copies of court attendance notices, a document described as a "Fact Sheet (sic)" setting out the history of the matter and a number of details in relation to the specific allegations alleged by the complainant, a history of the circumstances of alleged disclosures by the complainant and then also statements obtained in the course of the police investigation that have been produced to the defence, a report from a psychologist, Dr Garry Banks, two reports from a neurologist and a number of documents produced from general practitioners that have treated the accused over a period of time.
The accused was born, as I understand it, in March 1946 and is now 69 years of age. The complainant was born in August 1969. Her mother, who is still in a relationship with the accused, commenced a relationship with the accused in or about 1981. The alleged sexual assaults occur when the complainant was either 12 or 13 years of age. Between the beginning of January 1982 and late July 1983, the complainant, the accused and the complainant's mother from time to time lived on a boat that was moored in Akuna Bay in the vicinity of the Hawkesbury River.
The evidence available to this Court, of course untested but arising from the material that has been exhibited, either by the accused's solicitor in the annexures to her affidavit or other material, reveals that the complainant made general allegations of sexual assault against the accused to a friend and also it is said her family in about July 1983. That friend has provided a statement to police in respect of specific complaints allegedly made to her by the complainant. That statement is from 2010. That witness is KK.
As a result of the complainant making particular complaints to Ms K's family, the Mona Vale Police were contacted and the complainant was spoken to by police, as I understand it, on 29 July 1983. There was no further investigation after that date as the police investigation, for reasons set out in an occurrence pad entry dated 29 July 1983 attached to the statement of Mr Banfield, who was formerly a Sergeant Of Police, discloses. After speaking to the police, it would appear the complainant was for a period of time returned to the custody of her mother and I take it the accused. However, some weeks later she was placed in foster care.
It is also alleged from the material available to me that the complainant made another complaint of being sexually assaulted to a person who referred the matter to the high school she then attended. It would appear that it is alleged she spoke to a counsellor at the high school. Ultimately, for reasons that I need not dwell upon, they are a little unclear from the material available to me, this caused what has been described in the papers as the Department of Community Affairs (sic) to become involved. The involvement of the Department ultimately led to the complainant being moved to the foster care of a family of which the parents have provided statements for the purposes of the current proceedings. As I understand the matter the father of that family was a Minister of Religion. The complainant lived with this family for approximately two years.
Subsequent to the end of foster care the complainant kept in some contact with her mother over the years. She alleges, amongst other things, a family meeting in July 2009 in the presence of her then husband, who is now deceased, at which the accused and her mother attended. It is alleged by the complainant and by the complainant's late husband that the accused made a general admission to the complainant of wrongdoing.
The complainant made a statement to police which commenced to be taken in late 2009 and was completed, as I understand it, in February 2010. That is a statement that apparently was taken over some months. However, the police first approached the accused in relation to the current matters in October 2013. He was subsequently, after he exercised his right to silence, served with what were described as "future" court attendance notices on 26 October 2013; in other words, he was apparently not placed under arrest but was contacted by the police and served with the details of specific allegations on 26 October 2013.
Part of the background of this matter of some importance is that the accused had been involved in a motor vehicle accident variously described in the material that I have received as occurring in either 1968 or 1969, although the preponderant date seems to be 1968, and since that time he has had a number of significant disabilities, limitations and restrictions as well as health complications arising from that motor vehicle accident. Quoting from the report of Dr Banks, who quotes from material provided by Associate Professor Crimmins the neurologist to whom I earlier referred, the applicant suffered "major damage to the right side of his brain with a large parieto occipital infarct or brain death". He suffered "significant speech disturbance" due to the accident. He has a "right sided weakness involving his arm, face, leg and he suffers from epilepsy". He has other conditions, perhaps from other causes, either directly or indirectly relating to that motor vehicle accident, including obstructive sleep apnoea, polycythaemia, Crohn's colitis, or Crohn's disease, as well as a history of previous alcohol abuse.
One of the general practitioners who has also summarised Mr Kositzin's conditions reflects upon elevated blood pressure, vascular disease, pleural thickening on chest X-ray and diabetes. He has had other health complaints affecting his health, including thromboses, ulcers and has had a number of medical interventions, including a balloon coronary angioplasty. His epilepsy causes him to have seizures, the frequency of which is not fully disclosed, and those seizures have immediate impact upon his presentation. Those seizures would increase as his alcohol consumption increased according to the report prepared by Dr Banks. He has a range of medications to treat a range of conditions, including Dilantin, Lipitor amongst other drugs including drugs providing pain relief.
I have referred to the fact that the assessment of Dr Banks is annexed to the solicitor's affidavit in support of the motion. That report is dated 13 April 2015. I have two short reports from the consultant neurologist dated 21 January 2015 and 11 February 2015. I have produced to me various ‘patient summaries’ and other records of medications prescribed and the like from a practice known, as I understand it, "GPs Practice". I also have what is said to be a current ‘treatment plan’ setting out the treatments required of the accused.
I have the statement of the complainant, as I have earlier said, that was completed in early 2010, although it is dated late 2009. I have statements from her foster parents (the Higginbothams) statements of the complainant's husband, who is obviously now not available, correspondence between the accused and the solicitor acting in the office of the Director of Public Prosecutions, and as well as that copies of subpoenas sought to be issued on behalf of the accused related to the secondary application.
The accused has also sworn an affidavit adopting the detail of medical reports tendered, setting out some particulars as to his own disabilities, setting out some information provided to him about the availability or not of relevant records, witnesses and other information concerning the allegations. These matters relate to matters such as absent records for the mooring of the boat on which the accused lived at relevant times, the unavailability of school records, the unavailability of his employment records and the like.
The accused's solicitor has sought in part to summarise some of the evidence contained within the reports that she has exhibited with her affidavit, including seeking to summarise some of the clinical presentations of the accused to Dr Banks and others. The solicitor for the accused has also sworn a further affidavit setting out difficulties in relation to her inability to locate particular records said to be of relevance to the character and detail of the allegations made by the complainant. She also swears as to the inability to be able to locate people that have been referred to by the complainant in statements she has made as having provided her with various treatment, as well as matters relating to the unavailability of a witness.
In response to the accused's motion the prosecution tendered a bundle of documents, including material I would assume that is within the prosecution brief, perhaps obtained after the initial service of the brief, and which has been served on the accused. Included in these documents is the proposed indictment setting out what I understand to be the current allegations to be brought against the accused; that is, the 13 counts to which I earlier referred. A transcript and a recording of a legally recorded listening device used to record a conversation between the complainant, her husband, the accused and the complainant's mother on 20 December 2012.
I point out I have listened to the recording of that conversation and I have read the transcript. There is a statement from the officer-in-charge relating to his involvement in the investigation between 2010 and 2013 which is dated December 2013 and a further statement from him dated May 2015 to explain the delay in investigating the matter between 2010 and 2013.
A further statement has been obtained also from the complainant dated May 2015, in which she deals with allegations she makes against the accused and whether or not they arose from recovered memory, as it has been described, which she denies. Also providing details of her contact with some form of "clairvoyant" or "medium" and a "psychiatrist" and other counselling. There is in the Crown’s bundle a statement from her school friend concerning complaints made to her by the complainant allegedly in 1983 and there is a statement from the former police officer, Graham Banfield who, by reference to the occurrence pad entry which is exhibited with his statement, was involved in the interview of the complainant in July 1983. That occurrence pad entry deals with the allegations as they were recorded in general terms, the partial or complete retraction of those allegations, details of conversations with the accused and with the complainant's mother and other matters. I will return to this and the other material when I consider the merits of the application.

The principles

There seems to be little disagreement between the parties as to the fundamental principles to be applied, and that is to be expected given the settled state of the law. Both the Crown and the defence, that is the applicant and the respondent, have sought to summarise those principles that pertain to an application for a permanent stay of proceedings. Particular reference was made by the accused to the decision of R v Littler [2001] NSWCCA 173 specifically to parts of the judgment of Hodgson JA and particularly the judgment of Adams J who provided the primary judgment of the Court, relying specifically upon not only his summary of the general principles, but also matters that he raised in his judgment dealing with the case at bar.
Reliance was also had upon the dicta in the decision of Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 particularly, as I understand it, at 551. Of course, that authority is a leading authority in relation to dealing with issues that arise in respect of applications for an extension of time for the commencement of civil proceedings where there is a statutory limitation period. If I might just at this point quote from part of the judgment, which I understand is relied upon, the judgment of McHugh J particularly where he says at 551:

"The enactment of time limitations has been driven by the general perception that 'where there is delay the whole quality of justice deteriorates'. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed but sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo , 'what has been forgotten can rarely be shown', so it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed."

There are other comments made and I appreciate those observations are seen in the context of different circumstances, but I would prepared to accept McHugh's general proposition as to the difficulties that arise where it is demonstrated that witnesses are no longer available or time has elapsed such as to affect the reliability of the memory of particular people.
The Crown in its written submissions took the Court in particular detail to the fundamental principles as they have developed over the years, particularly since the mid 1980s and the decisions of the High Court, specifically at [57]-[64] of the Crown's submissions. The author of those submissions was a different Prosecutor to the one that appeared before me. As I said, the principles in general terms are scarcely in doubt, although some of the decisions of the Court of Criminal Appeal referred to by both the applicant and the Crown add some texture or substance to the fundamental principles, as I might describe them, clearly laid down by the High Court.
Jago v District Court of New South Wales (1989) 168 CLR 23 is authority for the proposition agreed between the parties that the power to grant a permanent stay of proceedings should be exercised only in "exceptional cases".
In Walton v Gardiner (1993) 177 CLR 378 at 395-396 the High Court held that the question of whether criminal proceedings should be permanently stayed as an abuse of process falls to be determined by weighing a variety of factors and considerations, including requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and the conviction of those guilty of crime and the need to maintain public confidence in the administration of justice.
In R v Glennan (1992) 173 CLR 592, particularly at 605-6, per Mason CJ and Toohey J, it was held that in order to justify an order for a permanent stay of proceedings, there must be a fundamental defect going to the root of the trial which is of such a nature that nothing that a trial judge can do can relieve against unfair consequences. This observation in Glennan was a reflection upon observations made earlier by the High Court in Barton v The Queen (1980) 147 CLR 75 and, of course, again in Jago v District Court of New South Wales to which I have referred.
In the more recent judgment of The Queen v Edwards [2009] HCA 20, the High Court, referring to Walton v Gardiner noted that the Court was required to consider:

"Whether in all the circumstances the continuation of the proceedings would involve unacceptable injustice or unfairness or whether the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process."

Bellew J in the more recent judgment of TS v R [2014] NSWCCA 174 said at [63]-[64]:

"The categories of circumstances which may justify an order granting a stay of criminal proceedings are not closed, nor are they capable of exhaustive definition. However, it must be recognised that a stay of a criminal trial is an extreme remedy which will be reserved for the most exceptional cases. The onus remains upon an applicant for an order for a stay to establish a factual basis for the order which is brought. That onus is necessarily a heavy one."

Leeming J in this judgment at [1] noted:

"The Court must be satisfied that the continuation of the proceedings would involve unacceptable injustice or unfairness or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process."

In this particular matter, of course, there are a number of factors said to be on the part of the applicant contributing to the injustice or the potential injustice which is claimed in the context of the authorities I have quoted justifying a permanent stay of proceedings. In The Queen v Edwards, to which I earlier referred, the Court said at [31]:

"Trials involve the reconstruction of events and it happens on occasions when relevant material is not available. Documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that a tribunal of fact is called upon to determine issues of fact upon less than all the material which could relevantly bear upon the matter does not make the trial unfair."

I might for my own measure add the word "necessarily" before the word "unfair". In Jago it was held by Mason CJ (at 33) that:

"In the safeguarding of the interests of the accused...the touchstone in every case is fairness."

In R v RWO [2002] NSWCCA 133 Bell J, then of the Supreme Court, said at [65] that:

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

Later she said at [68]:

"In determining whether by reason of delay a point has been reached such that any trial would necessarily be unfair, the Court looks to evidence of actual prejudice in the conduct of the defence. That evidence is considered in the light of the powers of the trial judge to relieve against such unfairness. These powers include giving appropriate directions, including warnings to the jury, ruling as to the admission of evidence and control of the procedures of the Court generally. The majority in Jago accepted that it will not always be possible for the trial judge to protect an accused against an unfair trial by these mechanisms."

In the decision of Littler, to which I made earlier reference, which was a case concerned with a number of factors arising out of delay in the prosecution in circumstances where the accused was charged with a number of sexual assaults allegedly occurring between the mid 1950s and the early 1960s, Adams J said at [25]:

"In cases of this kind where allegations are made and charges brought after such a lengthy delay, the investigating police have a duty, in my view, to search out contemporaneous witnesses who might be able to shed light on the relevant circumstances. It is not appropriate to leave this investigation to the defence or, of course, to the complainants. Although in a sense, therefore, it is for the applicant to establish such prejudice as would justify a stay of proceedings, this should be in the context of a full and adequate investigation by the prosecuting authorities which provides a context that enables the Court to evaluate in a sensible way the extent of the prejudice affecting the accused. In light of the material tendered in the District Court in this case it is impossible to avoid the conclusion either that little more has been done than the reduction of the complainant's allegations to a statement in the conventional form or there are no witnesses now available and able to provide relevant and significant evidence."

In that judgment in the following paras [27]-[35] his Honour dealt with many of the fundamental principles to which I have referred and also dealt with what were then the principles relating to appropriate warnings to be given in delayed complaint cases following upon the judgment of Longman v The Queen (1989) 168 CLR 79 and the decision of Crampton v The Queen (2000) HCA 60. Those two judgments are concerned with warnings that were held to be appropriate in cases of considerable delays, such as the case with which I am now concerned. But, of course, those matters have to be seen in the context of legislative amendments, particularly the provisions at ss 165A and 165B Evidence Act 1995. His Honour in that judgment also reflected upon an aspect of the matter of particularity that arises from the evidence in this case. He cited R v Adler, an unreported judgment from 1992 of then Gleeson CJ, with whom other members of the Court agreed :

"The fact that a witness who is potentially able to corroborate an accused is for one reason or another, such as death disappearance or disability, unavailable at trial does not normally produce the result that the accused cannot obtain a fair trial."

Adams J went on to point out, however:

"It is important to note...that even so, his Honour went on to consider the possible significance of the evidence potentially available from the missing witness upon the assumption, clearly enough, that this factor may have been such, in the particular circumstances of the case, to take out of the 'normal' category. The question has been considered in other cases citing a number of unreported judgments of the Court of Criminal Appeal such as Goldberg, McCarthy and Hemling from 1993 and 1994."

Adams J at [37] cited the judgment of Hunt CJ at CL in R v Tolmie, an unreported judgment of 7 December 1995. His Honour said:

"An assessment was made of the possible significance of the evidence said to be unavailable in Tolmie. As Hunt CJ at CL pointed out, it was not possible to assess the prejudice that the accused might have suffered as a result of the missing evidence since nothing was known of what evidence, if any, two unavailable witnesses would have given."

He contrasted this with another case from 2000 of Stringer. I pause for a moment to point out that there is no suggestion of a missing witness that could be said to "corroborate" or specifically "support" the accused in his denial of the allegations brought by the complainant. That has not been demonstrated in any way by any of the material presented to me. Furthermore, some of the matters that are adverted to relating to missing records and the like do not assist the court as to what, if anything, any missing person or document might provide by way of evidence relevant to the issues in the case.
So far as the issue of missing witnesses and evidence is concerned, the Crown cites a decision of McCarthy, to which I have earlier referred, from 1994 where Gleeson CJ remarked:

"Time and again it happens in criminal proceedings that for any one of a variety of reasons witnesses who may be regarded as important by one side or the other die or become ill or lose their memory or lose documents. If the result of that were that nobody could obtain a fair trial and the proceedings had to be permanently stayed, it would go a long way towards solving the problems of delay in the criminal list in this state. However, the position is that it is well recognised that an occurrence of that kind does not of itself mean that a person cannot obtain a fair trial or that proceedings need be stayed."

I appreciate there may be an element of irony in what his Honour said, but the ultimate point he made has been validated in a number of judgments concerned with claims of missing witnesses and the like.
In relation to the matter of Littler, in the context of understanding that it is rely upon both as to principle and by reference to the circumstances of the case, Adams J referred to in that case, in the context of the "great delay" which is far greater than here, three instances of what was said to be the prejudice otherwise described as "three main classes". The first concerned the unavailability of numerous, I emphasis the word "numerous", potential witnesses who are dead, demented or are unable to be identified [24]. His Honour referred to the second significant matter of prejudice as concerning the effective delay on the applicant's ability to remember with reasonable reliability what he said were the "contextual facts of the alleged occurrence" [38]. I pause for a moment to point out, as has been pointed out in the course of submission, that one of the issues that arose in the matter of Littler was the reasonableness of the claim that the accused would have a justifiable reason for not being able to remember particular students that he taught at relevant times surrounding the allegations brought against him. The third factor, as he described it in his judgment in Littler, was the that which arose out of the "psychological, psychiatric and medical examinations of the applicant". In that matter it was said to be of "considerable significance in determining whether the Court below made a relevant error in declining to grant a stay". I need not go into the detail of that material, but it represent s a cognitive disability or disabilities on the part of that applicant far greater than claimed in relation to the accused with which I am concerned.

Submissions

The applicant’s written submissions, and some of the oral submissions, sought to distil the various factors arising from the evidence relevant to the application. I appreciate, of course, that the application of the accused is not one solely concerned with one issue, for example great delay, standing alone. Here the suggestion of missing witnesses and the like, the physical and mental condition of the accused and related issues are very much intimately bound up with the other factors. It is pointed out in the defence submissions, to deal with them directly, that the alleged sexual assaults occurred, as per the timing of the written submissions, "between 32 and 33 years ago". The allegations brought against the accused provide no specific dates, rather a range of dates, and lack an absence of detail as to the events giving rise to particular sexual assaults.
It is pointed out that the applicant is a man in his late 60s and is a person of very poor health. The medical condition of the applicant, which I have summarised, is further particularised from particularly the reports of Associate Professor Crimmins. The applicant has had, as I have pointed out, angioplasty, both in 2009 and 2010 and he is described as being on a "cocktail of medications". He suffers speech disturbance. It is claimed he has "an inability to totally comprehend the spoken word". His ability to give a coherent history is grossly impaired by language disturbance. He has an inability to take in information in a complex manner. He will have difficulty following the course of proceedings. He will have difficulty understanding fully what is happening. He will have difficulty understanding the substantial effect of any evidence given against him because of the complexity of the way it will be presented. He will have difficulty in giving counsel proper instructions in a timely manner. He will have difficulty in taking any information that is presented to him and then being able to communicate any comments in relation to that.
That last sequence of matters I have identified come purportedly from a report prepared by Associate Professor Crimmins. I point out in relation to the matter that the matter I am concerned with is not an application for the accused to be found unfit to be tried and, as I understand it as the matter was argued before me, no real issue of fitness to be tried arises. If it did, one might have thought that was a matter that properly ought to have been addressed before any application for a permanent stay of proceedings arose.
Although I accept on my reading of Associate Professor Crimmins’ report that he would seek to address matters which would be concerned with the so-called "Presser" criteria, his analysis of that matter is not supported by Dr Banks.
With regard to Dr Banks' report, largely based upon the context of the interviews and "clinical presentation", a variety of matters are referred to: the length of time it took for him to be assessed; his hesitations in responding to particular matters raised with him; his mobility and capacity; his obesity; his difficulties in communicating; the laborious character of his speech; the characteristics of him seeking to "gap fill" between words with what are called "vocal utterances"; pauses, exasperation; the character of his responses; his acquiescence to propositions put to him; circumstances, as I understand it, as "gratuitous congruence"; the time it took him to process information; his fatigue and other matters.
It is acknowledged, however, in the written submissions dealing with Dr Banks, a matter I will deal with in my consideration of the matter, that his actual conclusions are, to quote the learned counsel for the applicant, "in many respects out of kilter" with the clinical observations. It is put on behalf of the applicant that it is particularly concerning how a jury will perceive the accused if he engages in lengthy delays between answering questions, if he stutters, as he would almost certainly do, if his speech was laboured and the like.
In relation to this aspect of the matter in the affidavit of the learned solicitor for the applicant sworn 23 April 2015, she in great particularity at [13] goes through a number of the observations made by Dr Banks. I do not propose to quote them, but I have taken all of the various matters that she has identified from paras 23, 25, 26, 28, 30, 33, 34, 37, 40, 42, 43, 49, 50, 51 and 52 of his report. They, without being ironic or critical, are in the spirit of the various matters that are summarised in the submissions of learned counsel for the applicant.
In relation to the accused other matters are raised in the submissions arising from Dr Banks examination such as the accused's potential for exasperation or even anger at himself given his frustration at being able to deal with questions.
Reference is made in the submissions, as I have pointed out, from a very brief summary of the evidence to inquiries made to find records relating to, for example, the mooring arrangement at the marina, the location of other boats nearby, which cannot be located. There has been change to the mooring area in Akuna Bay since events are alleged to have occurred 32 years ago. People that worked in various capacities in that area can no longer be located.
According to the statement of Detective Lombardo, the officer-in-charge, from December 2013 no records could be found identifying locations that are generally described by the complainant in her statement. He refers to the death of the complainant's husband, which I have already referred to, the unavailability of Gabrielle Higginbotham, a childhood friend of the complainant who apparently died in 2007 well before the complainant brought the detail of her allegations forward in 2009. Of course, some of the matters identified in the submissions have been overtaken by subsequent events such as, for example, the claim that there was no statement from former Sergeant Banfield, the author of the occurrence pad entry to which I have referred. This case has the feature of ‘delayed complaint’ and no scientific evidence available to support the complainant's account. I note that the accused's employment records are unable to be located. Whether he was at work at a particular day or not is not able to be established, but, again, the difficulty for the accused, I understand, will be the difficulty of pointing to a particular day given the generality of the complainant's allegations.
Reference is made to the statement of the complainant in May 2015 to particular people, a psychiatrist and some form of counsellor. No records can be found relating to the psychiatrist who is named. A counsellor that is named by the complainant has been identified. No statement has been served in relation to that. There is alleged in the submissions a quality of "flashback" and "psychiatric treatment" infecting the memory of the complainant and also some complaint made about the character of the covert recording to which I made earlier reference.
I might say in passing in relation to the covert recording that it is a neutral matter in proof of guilt. Certainly by itself, or in conjunction with all the other matters that have been raised, it is not a matter that provides any justification for the granting of a permanent stay of proceedings. The issue of its admissibility, whether the Crown wishes to rely upon it, and other matters such as what weight would be given to it, in due course are all matters well within the province of the trial judge and do not, in my view, bearing in mind the recording that was made in 2012, reflect upon the capacity of the accused to obtain a fair trial arising out of matters germane to the application for a permanent stay of proceedings.
I note that the reliance upon Adams J's observations in Littler by the applicant at [47]-[49], where his Honour reflected upon the inability of the then applicant to give evidence coherently and fluently without "substantial hesitation and qualification", to be able to remember evidence, difficulties with short term memory and the like.
As his Honour pointed out in that judgment quoted by learned counsel for the applicant, that the varies problems in Littler were "not merely cumulative but ... (multiplied) the significance of others". Reference is also made by the applicant's counsel to the High Court judgment of Kesavaragah (1994) 181 CLR 231, of course a leading case in relation to the test for fitness to be tried. In that judgment, as it is cited in the written submissions, it was said (at 246):

"It makes no sense to determine the question of fitness to be tried by reference to the accused's condition immediately prior to the commencement of the trial without having regard to what the accused's condition will or is likely to be during the course of the trial. There is simply no point in embarking on a lengthy trial with all the expense and inconvenience to jurors that it may entail, if it is to be interrupted by reason of some manifestation or exacerbation of a debilitating condition which can affect the accused's fitness to be tried."

I have seen no evidence, even though I appreciate there is some deterioration over time in the accused's condition, that this trial would involve such a length of time as to either contribute to the deterioration of the accused or for any deterioration during the course of the trial to be a significant factor. I say in passing I cannot see the trial taking longer than four weeks, subject to any delays that might be required to accommodate the personal circumstances of the accused, a matter I will deal with in a moment.
Oral submissions were made by counsel for the accused. They reflected upon matters within the written submissions, reflecting again upon both substantial delay and the effect of that delay upon the character of the investigation. Again, reference was made to the unavailability of witnesses or "lost witnesses", such as GH the complainant’s ‘foster sister’, the complainant's husband, the unavailability or impossibility of identifying people related to the mooring arrangements at Akuna and related matters.
In the context of the medical and psychological evidence it was submitted by the applicant that although the accused had been suffering the various physical impediments he now suffers from substantially, at the time of the alleged offences, his condition had worsened since that time and I accept that is so. His problems are both physical and cognitive, referring to the report of Dr Banks and the neurologist. But it was accepted in oral submissions that there was conflict between Dr Banks' assessment of the clinical presentation and some history received and ultimately the findings he made. Reference is made also to the fact that Mr Banfield does not have any real memory of the circumstances of the preparation of the occurrence pad, which is not unexpected.
It is submitted that the accused's disabilities would not permit are him to do justice to himself and that the case was far more complex than conceded by the prosecution. Particularly it is also pointed out that there was an "inexcusable delay" between the making of the statement by the complainant or the completion of it and the matter being brought to the attention of the accused.

The Crown's written submissions sought to focus upon what it identified as the issues raised by the applicant, both in the context of the legal principles to be applied and the evidence available to the Court as well as the character of the litigation. The categories that the Crown identifies, which are generally accurate although there may be matters of degree and detail that could be quibbled with, include the health of the accused, the character of the allegations brought by the complainant such as the absence of corroboration or supportive evidence, the missing statement from Mr Banfield, matters pertaining to the foster family, the death of relevant people, particularly the complainant's husband who provided a statement in 2009, the history given by the complainant in her statement of having used prohibited drugs, having seen a clairvoyant, the significance or relevance of the listen device recording, the absence of an explanation for the delay in charging, if that is the correct expression, the applicant after receiving the complaint.
With regard to the health of the applicant the Crown does not dispute "that the accused suffers and has suffered for varying times from a number of health issues". However, it is claimed by the Crown there is "no evidence" that the accused cannot be fairly tried by reason of his medical conditions. His submissions deal with the issue of Dr Crimmins' view of the matter. The point is made by the Crown that if the accused has difficulty understanding complex instructions, the character of the case and the response of the accused that might reasonably be expected, given the generality of the allegations and the length of time since the relevant events, is not one that requires "complex instructions".
The evidence is not complex. Various criticisms were made of Dr Crimmins' report and, in any event, it is pointed out from Dr Banks' report that his assessments occurred over seven and a half hours in two sittings which the accused was able to participate in, four and a half hours on one occasion, three hours on the other. The observations of the applicant by Dr Banks and the conclusions of Dr Banks are particularised at various paragraphs of the submissions contrary to some of the assertions and conclusions pressed by the applicant. It is submitted by the Crown in various ways, set out at [20] - [21] of the Crown's submissions, that there are various mechanisms that could be undertaken to accommodate the incapacities and difficulties of the accused, which would not make his trial unfair, and ultimately, based upon Dr Banks' assessment of the matter, there is no reason for the accused to be seen as disadvantaged by the conduct of the trial in that way.
As to the absence of supporting evidence it is put that this is not a matter required as a matter of proof. The issue of absence of supporting evidence would be expected in respect of offences not committed in public or in the presence of another person. The Crown does refer to what it calls "timely complaint" of a sexual offending in 1983. Unfortunately, the Crown will have to accept in due course the fact that the complaints are general. There is also a retraction of them and other matters that may reflect adversely upon the credibility of the complainant. In any event, the issue of "complaint", if that is the way it is to be described may be a matter relevant to the assessment of the credibility of the complainant.
With regard to Detective Banfield, as I said, that matter is taken care of, it is said by the Crown, by the statement he has prepared. In any event, the occurrence pad speaks for itself. In the context of the detail of the occurrence pad, the Crown points to the statement of Ms King from 2010 which details specifics of complaint, if I can use that word again, made by the complainant. With regard to the death of the husband, it is pointed out that notice has been given to the defence pursuant to s 67 Evidence Act 1995. The issue of the admissibility of that evidence and what directions would be given in respect of that evidence contained within the statement if it was admitted is a matter for the trial judge and not an uncommon occurrence given the operation of the Evidence Act (cf s 65 Evidence Act).
So far as the complainant's background of drug use, seeing clairvoyants, seeing psychiatrists and the like, it is submitted by the Crown that the complainant has given a full disclosure. The complainant denies any reconstructed memory and the allegations contained within the most recent detail of her allegations against the accused, that is, the statement completed in February 2010, can be regarded as "a confirmation" of complaints she made in 1983. Whether that is true or not, again, is a matter for comment in the trial. The Crown may have some difficulties in terms of the credibility of the complainant given the absence of detail in 1983. Be that as it may, the Crown says that the complainant is available for examination in relation to those matters. I say in passing, by reference to that, that a number of the matters that the complainant discloses may well be matters to be taken up on behalf of the accused reflecting upon her credibility. That is a matter for trial counsel.
So far as the listening device recording is concerned, there are certain comments made by the Crown. They do not seem to really touch upon, nor do the submissions of the accused touch upon, issues germane to whether there should be a permanent stay of proceedings. There is conceded to be a delay between the matter being reported to police and the charging of the accused. However, Detective Lombardo has prepared a further statement in relation to that matter.
The Crown completed its submissions by saying that the assessment of this application would be guided by consideration of the observations of Bell J in RWO [2002] NSWCCA 113 [89]. Her Honour said:

"To my mind the evidence does not establish that the applicant's memory difficulties are such to (make a trial) in respect of events that occurred so many years ago would be unfair. In Littler Adams J noted that the loss of recall of unremarkable 'contextual fact' may be a source of real difficulty to the conduct of the accused's defence. The applicant in that case was a member of staff of the Westmead Boys’ Home at the relevant time. The allegations were made by former students. As Adams J observed the interval of time made it difficult for the applicant (assuming him not to have committed the offences) to recall the complainants and what, if any, contact he had with them. The present case does not seem to me to give rise to quite the same considerations. This is not to say that the applicant's memory of the incidents of domestic life is not likely to have been impaired by the passage of well over 30 years. A direction in the terms set out in Longman and Crampton acknowledges the difficulty that an accused faces in seeking to meet allegations brought many years after the event."

I must say in relation to that last aspect of the matter, of course, although the Crown does not refer to it, there are the issues that arise by the operation of s 165B Evidence Act. Bell J in that judgment referred to the issue of delay being not uncommon in "child sexual offences". She noted for reasons that there may be delays in complaint which will need to be the subject of specific direction having regard to s 294 Criminal Procedure Act.
So far as the post complaint delay in the investigation, it is submitted by the Crown that those matters are addressed by Detective Lombardo. The Crown said in its written submissions that such a delay was "not desirable" given the nature of the inquiry, but other investigative demands had pressed upon Detective Lombardo and no particular prejudice has been identified flowing from this particular period.
The prosecution in its oral submissions asked the Court to have regard to the recording of the conversation made in December 2012 and submitted that when one hears the recording it demonstrates in an unguarded moment that whilst the accused had some speech impediment he was well capable of understanding questions put to him and responding to those matters, although it was conceded he had some difficulty in expressing himself. I for myself would agree with that general proposition.
It was also pointed out that he has been able to instruct his counsel, as his affidavit evidence in this matter showed. It was submitted that any physical and cognitive difficulties could be accommodated in a range of ways, both by the operation of the relevant provisions of the Evidence Act, such as s 42, arrangement being made about the conduct of the proceedings, appropriate directions to the jury, even the pursuit, of a trial by judge alone, although the Crown was not necessarily encouraging that approach.
It was submitted by the Crown that the Crown case was not complex. Matters raised by the defence about the absence of corroboration, as it was expressed, were matters of no moment given the character of the allegations, and there was the evidence, again in this context, although it seems to me mistakenly in this context, to the complaint as it is described in 1983 both to the police and to Ms King and her family.
Counsel for the Crown on the basis identified by Bell J sought to distinguish the matter from Littler. Here the accused was faced with one complainant, who the accused knew well. Of course, Littler involved a person facing historical allegations from a number of complainants, as Adams J pointed out, that he had good reason not to know well.

Consideration

It has taken some time to work my way through both the histories to be addressed and the bases upon which it is sought that I should address those issues. However, it is important that the significant matters raised by the parties be identified in the judgment. As I said earlier, the essence of the application by the accused is that a combination of factors combined to render the prospective trial of the accused unfair and it is submitted on behalf of the accused that there are no means for remedying the situation by direction or any other method. With this general submission I cannot agree.
At the heart of that general submission two particular matters dominate. Obviously, the current health of the accused and the extensive delay in bringing the prosecution forward, both in the disclosure of detail by the complainant to police and then the delay in the matters being brought to the attention of the accused to which I have referred. There are other matters, of course, to be seen in conjunction with these primary matters such as unavailable witnesses, lost evidence, inability to make relevant inquiry to challenge the claims of the complainant and other issues pertinent to the health of the accused that would affect his capacity to participate in the trial.
I have noted many of the particular matters raised by the applicant's counsel in his submissions which purportedly arise from the assessment of the accused by Dr Banks and by Associate Professor Crimmins. With regard to some of these issues examined individually, appreciating the global effect of the submission made by counsel for the accused, general issues relating to "forensic disadvantage" arising from relevant delays and bringing forward the allegations of the complainant in detail these are matters for comment at trial. Although, as I said, there was no delay as such in terms of general complaint by the complainant about sexual impropriety by the accused. This is a matter that, notwithstanding s 165B Evidence Act can appropriately be dealt with either by general or specific directions at the trial by the trial judge.
I accept, of course, that in the absence of particular detail concerning time of relevant events, people present and the like, the accused's position may be reduced to the character of a general denial, which is one of the matters raised on his behalf. However, the case would be an appropriate one, in my view, for the relevant direction to be given to the jury concerning the issue of forensic disadvantage on application of the accused's counsel notwithstanding the terms of the Evidence Act. It seems to me if such a direction was sought it could not be resisted either by the Crown or by the trial judge.
The particular disadvantages which are identified in the evidence and from submission are the very matters, in my view, that would be specifically identified as examples of relevant forensic disadvantage which would require the jury to very carefully scrutinise the evidence of the complainant in conjunction with other matters. The prosecution of historical allegations with sexual assault are not uncommon in this and other courts, but by operation of the Evidence Act, in conjunction with what remains of the common law directions, the superior courts have accepted that in the appropriate case warnings will be required to be given. The Bench Book currently available to judicial officers confirms that in very clear terms.
My personal experience, of course, not conclusive in determining this application, is that as recently as two weeks ago I presided over a trial in Wagga Wagga of a man alleged to have committed sexual assaults against the complainant when she was aged between the ages of five and eight years, the allegations being over 38 years old; in other words, a woman in her late 40s was endeavouring to remember events she said occurred when she was between the age of five and eight committed upon her by a neighbour. The accused was left in no other position than making a general denial. He did not give evidence in his trial. Yet he was acquitted.
I appreciate, of course, that each trial is different. However, that situation illustrates both the effectiveness of the appropriate warning and the respect with which it is given by juries. In any event, it is common ground within the law, following upon some observations are made, for example by McHugh J when he was a Judge of the High Court, that the operation of the law, particularly in the area of criminal trials, proceeds on the assumption that jurors will comply with their oaths or affirmations to return true verdicts in accordance in accordance with the evidence and follow the directions of the trial judge and obey the directions the trial judge gives.
There is ample authority for the proposition that the sequelae of delay in prosecution as arises in this matter, the death of witnesses, the difficulties in locating or inability to locate relevant witnesses, the loss of evidence and the like, are features of the problems that occur by delayed disclosure and they can be dealt with by direction which are either of themselves or in combination with other factors in the appropriate case matters which will not create exceptional circumstances in order that a permanent stay of proceedings be given.
The particular matters pointed to by the defence such as the inability to locate witnesses and records, the deaths of witnesses that are known about etc to my mind do not relate to matters at the heart of the truth of the allegations made by the complainant given the character of the allegations and the location and circumstances of the alleged offending. This observation includes the contents of the statement provided by the husband of the complainant. His statement gives some historical account of the complaints made to him by the complainant and also gives accounts of things that are said to have occurred in the presence of the accused and the presence of the complainant. These matters are not matters that go to the heart of the truth of the allegations. They are very of dependent upon the reliability of the complainant herself.
In that regard, I turn now to the health of the accused. His limitations physically and in his speech and other matters that are identified in the submissions of the applicant and in the evidence produced on his behalf are self-evident. In my view, however, as significant as they are, they are not so profound in the context of the analysis of them by, for example, Dr Banks so as to render any proposed trial materially unfair.
I bear in mind in relation to the matter that whilst I accept over time, of course, with ageing and the character of the conditions he suffers, there will be a worsening or deterioration in the condition, or there has been. For example, since the period of time when the offences were committed but the fundamental difficulties and disabilities to which reference has been made in the material has, as I have understood the evidence, largely been present for quite a number of years before the offences were committed. It has not been put. Nor is there evidence to support the proposition that the accused by reason of his physical impediments and purported cognitive limitations summarised in the submissions to which I have referred and contained within the material tender render him unfit to be tried.
Whilst the evidence of his solicitor and some of the submissions point to aspects of his clinical presentation, an analysis of the findings of relevant experts, that is, Dr Banks and Associate Professor Crimmins suggest those matters do not support a proposition that the disabilities of the accused are so profound as to prevent a fair trial. As was expressly acknowledged in the oral submissions and in the written submissions, the ultimate findings of Dr Banks sit somewhat at odds with some of the clinical observations that have been extracted and detailed, for example, by the accused's solicitor.
Dr Banks noted in his report, admittedly I accept, addressing the issue of fitness to be tried, that the accused "demonstrated an intact understanding of court and the allegations made against him". His orientation to person, time, space and purpose is intact, as is his awareness of the current events, including the then pending Commonwealth election. His autobiographical memory is sufficient for the purpose of being able to comment on actions that took place some years ago. As was noted with his awareness of past Prime Ministers, there is potentially a “confounding” element associated with his traumatic brain injury which he sustained in 1968. Provided he is given adequate support and time he is able to formulate a response to charges so that his lawyer can cross-examine the prosecution witness. The applicant is considered fit to give instructions to his solicitor but these instructions will be likely in the form of simple statements. The applicant was able to attend and focus in his interview for four and a half hours on 19 March 2015 and for a period of three hours on 25 March 2015.
During a trial (the applicant) may experience some difficulties recalling information presented in the course of the proceedings and may need occasional reminders throughout the trial when he may need additional time to process information presented to him. But none of these elements would be sufficient concern to render him unable to competently participate in the hearing in any substantive way. The burden may actually be on the listener who will need to exercise considerable patience to enable (the applicant) to find his voice and words.
I pause for a moment to point out that those very matters could quite easily be properly addressed by the trial judge in a manner that would cause absolutely no prejudice to the accused. One might have thought in the circumstances of the matter, even though the jury will be given a warning about sympathy and the like, such matters might excite some sympathy on the part of the jury.
In the context of the applicant's presentation to court, suitable arrangements can be made to ensure if required to give evidence, that the burden of giving evidence and the manner and the presentation of his evidence is undertaken in a way that will not cause him injustice. The matters raised by the prosecution concerning the complexity or lack of complexity of matters requiring instruction, in my view, are valid. There will be a filter that operates between the accused and his solicitor to assist in digesting information or communicating instructions.

The accused has had ample time before trial to give proper instructions. In fact there is no claim about it being impossible for him to give instructions. The accused has been able to swear an affidavit in relation to relevant matters. In any event, special arrangements can be made if needs be for him to either give instructions or to receive advice in the course of the trial.
Associate Professor Crimmins' reflections upon the accused's capacity to understand the gravity of the charge and understand the Court processes are reflected upon his awareness to the character of the charges. He identified significant speech disturbance and other significant matters of communication which are particularised in the submission.
He said in his report on 11 February 2015 that the:

--"immediate recall, memory of events and ability to give a coherent history was grossly impaired by his language disturbance...the content (of what he said) was still appropriate in the context of what he was being asked...this was determined during a number of consultations I have had with him over the years, but especially during the most recent consultation. At that time I saw him for a period of 45 minutes. We discussed the Court case and its implications and, in my mind, there was no doubt he was clear of the implications of the Court case and his not guilty plea."

One of the reasons that it would be clear, one would have thought, is simply because of the lack of complexity of the character of the case brought against him so far as the allegations were concerned.
I appreciate in swearing an affidavit in this matter there would have been considerable difficulty for the applicant articulating the detail of the evidence, but the affidavit itself shows a coherent understanding of matters relevant to this application and the litigation. As I said, the various matters identified by way of physical or, perhaps, cognitive difficulty, although I perceive no significant cognitive difficulty on the part of the applicant, are all matters that can be managed by the trial judge or the legal representatives of the accused in consultation with the prosecution and the trial judge. The trial judge will have to be alerted to any special arrangements that are required, such as the seating of the accused, suitable breaks, explanations to the jury and the like, as well as appropriate warnings.
As it stands it could be argued by the prosecution given what I understand to be the accused's condition in 1982/83 that that condition, as I said earlier, was substantially as it is now. Allowing for some deterioration with time. The Crown would argue that even in those circumstances it is not inappropriate for the accused, if he on the Crown case committed the alleged offences, to seek to avoid facing trial in relation to the matter on the basis of essentially the same disabilities that he had, in fact, at the time of the commission of those offences. That is the Crown case.
On the other hand, as raised in submission to me and a matter specifically referred to by Associate Professor Crimmins, there appears to me to be a live issue as to whether the accused was, in fact, physically capable of doing some of the things that are alleged against him in the circumstances of the complainant being restrained in the manner in which he claims. These are all matters for a jury to determine with appropriate directions.
There are other matters to be identified and dealt with on this application. Although it was not a matter expanded upon by the defence in oral submission, it would appear that some of the matters specifically addressed in the defence written submissions, as I have said earlier and as the Crown has contended, have been addressed somewhat belatedly by additional material produced by the Crown. I refer to the statement of Sergeant Banfield. That bundle of material I have been provided does include a number of additional statements which, apparently, have been obtained in late April or May of this year, including, as I said, the additional statement from the complainant.
I deal with the issue of delay from early 2010 when the complainant's statement was finalised to October 2013. Detective Lombardo attempts to address that in his most recent statement. I regret to say I find his explanations are weak, in some respects non-existent, concerning the issue of unforgivable delay. A number of complaints are made about the matter in terms of objective comment are accurate and the Crown hardly shies away from it when one analyses the submissions. I appreciate the delay in the investigation in this matter is not necessarily an indictment of Sergeant Lombardo. He gives explanations of being torn away from this investigation to undertake other work of the New South Wales Police Force, that I can understand.
However, it seems to me that whatever he has done or not done, there stands to be proper criticism to be made of the policies of the New South Wales Police Force in cases of this type. This is one of many cases of its type where many, many months, sometimes years, pass after a complainant has raised historical allegations of sexual assault in a generally coherent narrative account, before any proper investigation is undertaken. Usually the first phase of the investigation, although not in every case I hasten to say, is a perfunctory investigation before the allegations are put to or brought to the attention of the alleged perpetrator. The pattern in all those matters is the same as it is here.
Whatever the suspect says or does not say when spoken to by police, he or she is usually immediately charged or else served with court attendance notices without much, or any further ado. Later on, of course, after he has been charged there is a realisation by someone that there are various issues needed to be addressed, either because of the initial statement of the complainant itself, because of subsequent statements by her or other witnesses, because of matters raised by an accused in an interview or because of matters raised by the defence legal representatives in the preparation of the case.
Then there is a flurry of investigation into matters before the trial or some pre-trial litigation. We often see in these cases matters involving complaints that are years old, statements still being prepared in the week before or the week of the start of a particular trial. These further investigations can be contaminated by further delay or the earlier conduct of the investigations. Only a fool would think, in circumstances where witnesses should not discuss matters amongst themselves, that if a complainant has made a statement three or four years before then, just before the trial a close family member is called upon to make a statement to assist to confirm an aspect of her or his account, there is no risk of contamination between those two potential witnesses. In any event, eventually statements are obtained and inquiries which are made which really should have been obtained before the accused was charged or even before a decision was made to interview him.
It is to be borne in mind that when an accused person is interviewed in relation to matters of historical sexual assault generally in that interview process they are expected to respond to general allegations put to them without any meaningful opportunity of reflecting upon what is alleged with usually very few particulars about place and time. Usually in circumstances where the questioner has had the relevant statement in his or her possession for months, sometimes years before. In historical sexual assault matters the accused when interviewed is called upon to respond in detail to matters that are many, many years old where nobody, save for someone of particular mental acuity, would be capable of remembering with precision the details that relate to the contextual issue of those allegations.
The case in Wagga Wagga was a case in point. One of the issues that arose in that case was whether the accused was actually a neighbour of the complainant or whether he moved into the house after the complainant had moved address. The case I am referring to involving the 38 year old allegations had evidence that at one point that the victim or the alleged victim's neighbours were the parents in-law of the accused. It was suggested as part of the Crown case that the accused had lived in the house with his parents in-law. There was evidence in the case to show that, in fact, after the victim and her family moved out of the house, the parents in-law moved into their house and then the accused and his wife and his children moved into the house next door of the parents-in-law although they had been regular attendees at the next-door premises when the victim had lived in the subject premises.
That is all well and good, but the point of the matter was that when the interview was conducted with the accused and he was asked by the police to remember where he lived in Wagga during the 1960s and the early 70s, he not only reflected some uncertainty but he named some places where he had lived, but did not name other places that documentation from the Land Titles Office established that he had lived. He did not remember living in two addresses where there were records of the Land Titles Office to demonstrate that he lived at particular times. This shows the difficulty for a person in that situation to be able to remember details which turn out to be entirely accurate. In these circumstances, of course, it is small wonder that many such accused are acquitted in circumstances where, if proper investigations have been undertaken, either the accused would never have been charged or, alternatively, the Crown might have had a stronger case than the one that is ultimately produced at trial.
In this matter it seems to me the only material evidence now compromised or unavailable is the potential evidence of the complainant's late husband and the particular representations alleged to have been made by her and also alleged representations of the accused in her presence and his presence. The other matter of unavailable evidence and the like reflects upon witnesses which, who I said earlier, were not only not germane to the truth of the allegations, but about which in most instances no guarantee could be had as to what they would have said even if they were available.
In relation to the issue of the missing husband, the admissibility of that statement or the contents of that statement will need to be considered having regard to s 65 and 67 Evidence Act, perhaps also by consideration of s 137 of the Act, assuming the Crown would wish to tender the document given the warnings that inevitably would be required about it, if sought by counsel for the accused. Pursuant, for example, to s 165 Evidence Act or for other reasons. As it transpired, it seems to me that the delay between 2010 and 2013 would have made no difference to the availability of that witness given his death shortly after 2012.
Ultimately, the delay in the investigation of the matter is not a material matter in this case save for the fact that it has added already to the existing substantial delay from 1983 until 2010 before substantial and detailed disclosure by the complainant in her first statement. I have taken that matter into account, but I particularly take it into account the matters of detail that have been discussed in cases such as Littler and RWO to which I have referred. Ultimately, with regard to those matters and the health of the accused, this case is a very different case than Littler. Bell J in RWO specifically identified matters, as the Crown submitted, reflecting upon those differences at [89] of that judgment.
Another matter initially raised by the accused was the absence of the statement from Sergeant Banfield. The written submissions of the applicant obviously predate the production of the further material to which I have referred. The statement of Mr Banfield apparently made on 25 May 2015, offers little consolation to anybody. He has very little recollection, if any, of relevant events and probably will not be of much assistance to cast further light upon the occurrence pad entry.
However, the occurrence pad entry is available to be considered in its terms and may be of material assistance to both the prosecution and the defence. It provides evidence of a complaint in general terms about the accused's conduct, but it also contains relevant hearsay evidence that may be admissible under the Evidence Act of retraction by the complainant, matters relating to the questionable veracity of the complaint in the eyes of the maker of the occurrence pad entry, the accused's denial and other matters.
As often happens these matters are common in such cases. If the occurrence pad entry is admissible pursuant to any relevant provision of the Evidence Act, or inadmissible as the case may be, this is a matter for the Court in due course to determine. It seems to me with respect to Sergeant Banfield's lack of recollection of events by reference to the terms of the occurrence pad, that is a matter of no great moment and can be dealt with again by appropriate direction and warnings. Or, if needs be, by appropriate examination and/or cross-examination of the author of the occurrence pad entry who will be available to give evidence notwithstanding his current lack of memory.
The claims of the absence of any specific school records is again a matter that can be dealt with by appropriate direction. One would have thought, however, given the statement of KK, and she is available to be cross-examined, that her recollection of relevant events and her recollection of representations made by the complainant may point to the fact that the absence of school records may well be a very good thing for the accused, not necessarily a bad thing.
In this respect the statement of Ms K in the context of the complainant's allegations and her alleged complaints appears to be a statement of pertinence that appears to be largely unblemished by delay. Subject to the testing of the accuracy of her recollection, which is a matter that may work to the accused's advantage, assuming that the evidence is admissible for hearsay purposes pursuant to s 66 Evidence Act 1995 or admissible for non-hearsay purposes. In any event, it is of the character of evidence that has to be examined by a jury on the basis that the person who makes the relevant representations is the very person upon whom the prosecution must rely to prove the guilt of the accused.
I have also taken into account the complaint about the absence of records of Akuna Bay and related matters, identification of people moored nearby and staff and the like. This is clearly a matter within the ambit of what was contemplated in the dicta of Gleeson CJ in the decision of McCarthy and again is a matter for which the accused should expect an appropriate warning given to the jury in his favour.
The absence of at least one of the children of the ‘ foster parents’ by reason of a death in 2007, or thereabouts, is not a critical matter in this case, even allowing for anything that the complainant says, noting the recollection of the foster parents and the circumstances in which the complainant came to their family. There is no guarantee that GH, the foster sister, would have been able to provide any specific assistance to any party on any reasonable basis or could have even given admissible evidence of relevant representations made by the complainant to her even if they were made and even if she were alive.
There is a live issue as to whether any representations made to her were relevantly "fresh in the memory". Although she falls within the category of missing witnesses because of the general delay in the timely disclosure of specific allegations, her unavailability is a matter that can again be dealt with by appropriate direction, as I have already indicated, and to my mind ultimately is not a matter contaminated by any unsatisfactory delay in bringing forward the allegations or delay in the subsequent investigation.
The issues identified by the applicant such as the absence of corroboration and the significance of the listening device conversation are matters not of any significance, even allowing for extensive delay through no fault of the accused. The absence of supporting or corroborative evidence of the complainant, apart from being a common feature of such cases whether there be recent complaint or delayed complaint, is a matter upon which appropriate comment can be made and direction given if needs be by the trial judge.
I note, of course, that in the intervening time since 1987 or shortly thereafter up until the present time, trial judges have been permitted to make what is called the ‘Murray’ direction. There is recent authority of the Court of Criminal Appeal stating that the operation of the current legislation restricts such a direction in cases of sexual assault relying upon one witness. That may be so. There are some discussions, of course, amongst judges and lawyers before judges as to aspects of that recent judgment. But even if a warning about examining the witness's evidence with great care because she gives the only evidence against the cannot be given, this is still a case where the jury would need to be told by the Crown, amongst other people, that the Crown case was entirely dependent upon the truthfulness of the complainant.
As I said in relation to the listening device recording it is an equivocal recording. To my mind it actually works to the accused's advantage in its terms. Whether it is played or not is not a matter that is particularly pertinent. In fact, it is of no moment, in my view, in determining this application.
Arising out of the complainant's earlier statement are issues taken up by the applicant concerning her private behaviour, treatment she has received, counselling and the like. These matters are to be considered along with the admission made by the complainant about a use of prohibited drug and are matters that may reflect in due course adversely upon a credibility. They are quintessentially matters to be considered by a jury in determining whether the jury is satisfied beyond reasonable doubt of the truth of the complainant's evidence.
So far as the solicitor’s inquiries to locate the relevant counsellors, the particular psychiatrists and the like identified by the complainant, if it transpires that no such people existed or were not legitimate counsellors or medical practitioners, obviously, these are matters to be taken up with the complainant as relevant to the assessment of her credibility. If it be suggested that the complainant's recollection of events has been infected by her contact with a clairvoyant or a medium, from the use of drugs or other third party interventions, or from some suggestion of recovered memory, this is a matter that can initially, if need be, be examined in the form of a Basha inquiry or directly taken up by the complainant in the presence of the jury as relevant to the assessment of her truthfulness.
The complainant has produced a further statement in relation to the matter which, to my mind, may provide further "grist for the mill" for the accused notwithstanding the explanation she has given. It seems, with respect to the investigation, that the obtaining of such a statement five years after the original statement in circumstances where one might have thought that proper investigation should have been undertaken in 2010 to identify some of the people to which the complainant referred in her earlier statement, is a matter that reflects adversely upon that investigation.
Once again, these are all matters for comment and fit within the rubric of issues that can legitimately be raised in the conduct of the trial or be matters the subject of proper direction to the advantage of the accused. As to the issue of whether the complainant has "reconstructed memory", the concerns of the solicitor are matters, as I say, that can be addressed with the complainant irrespective of whether there has been delay, irrespective of the explanations given by the complainant. It seems that if a jury believed that it was reasonably possible that the relevant events had been reconstructed in the mind of the complainant, this would raise a basis for the jury to have a reasonable doubt about the truthfulness of the complainant and/or the reliability of her evidence. Again, these are all classic issues for a jury to determine in the context of consideration of the legal directions that are to be given.

Conclusion

Thus, for the various reasons I have identified, I have concluded that I should not order a permanent stay of proceedings. I am not relevantly satisfied that by reason of the combination of factors identified by the applicant that the matters constitute a defect, that satisfies what could be called the "fundamental test" articulated in cases such as Jago, Walton and Gardiner and the other cases earlier cited.
There has not been demonstrated the relevant fundamental defect going to the root of the proceedings that cannot be cured by direction or other actions on the part of the trial judge. The trial, obviously, will present its difficulties for the accused and for those participating in it. But not such as to render the trial unfair, provided the protections, warnings and relevant directions that I would anticipate would be given are given, as well as the appropriate steps are taken for the conduct of the trial to accommodate any particular difficulties the accused may have during the course of the trial.

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Decision last updated: 17 December 2015

Medium Neutral Citation:	R v KOSITZIN [2015] NSWDC 303
Hearing dates:	19/06/2015
Decision date:	13 August 2015
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Application for permanent stay refused.
Catchwords:	Criminal - permanent stay of proceedings, delay, 'lost' evidence, health of the accused.
Legislation Cited:	Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	Barton v The Queen (1980) 147 CLR 75 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Crampton v The Queen (2000) HCA 60 Jago v District Court of New South Wales (1989) 168 CLR 23 Longman v The Queen (1989) 168 CLR 79 R v Glennan (1992) 173 CLR 592 R v Kesavaragah (1994) 181 CLR 231 R v Littler [2001] NSWCCA 173 R v RWO [2002] NSWCCA 133 R v Tolmie (Unreported, NSWCCA, 7 December 1995) TS v R [2014] NSWCCA 174 The Queen v Edwards [2009] HCA 20 Walton v Gardiner (1993) 177 CLR 378
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions - Crown Nicolas Kositzin - offender
Representation:	Counsel: Mr P McGrath – Crown Mr P Barham - Offender
File Number(s):	2013/326288