R v M, A - [2020] SADC 13

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, A
[2020] SADC 13
Reasons for Ruling of His Honour Judge Beazley
14 February 2020
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Accused charged on Information dated 8 June 2018 with one count of Indecent Assault, and one count of Unlawful Sexual Intercourse of the one complainant - each offence alleged to have been committed 35 years ago. Application by the accused for an order staying the criminal proceedings against him as an abuse of process - various grounds asserted including the total delay of 35 years between the date of the alleged offences and the date fixed for trial; the delay of 15 years before the alleged offences were first brought to the attention of the prosecuting authorities; the delay by the prosecuting authorities between 2000 and 2015; the intervening deaths of relevant witnesses; the loss or destruction of relevant documents and recordings; and other factors which, as a whole, are asserted to have caused the accused irretrievable unfairness - the effect of a forensic disadvantage direction pursuant to s.34CB of the Evidence Act.
Held: Application by the accused is dismissed.
District Court Criminal Rules 2014 (SA) Rule 49; Criminal Law Consolidation Act 1935 (SA) ss 49(3) and 56; Evidence Act 1929 (SA) ss 34CB, 34KB, 34KC, 34KD and 34M, referred to.
Jago v District Court of NSW (1969) 168 CLR 23; Ridgeway v R (1995) 184 CLR 19; R v Perre [2019] SASCFC 100; Hermanus v R [2015] VSCA 2; R v Glennon (1992) 173 CLR 592; Batistatos v Roads & Traffic Authority of NSW (2006) 226 CLR 256; R v Jacobi [2012] SASCFC 115; R v B, P [2016] SASCFC 30; Williams v Spautz (1992) 174 CLR 509; Walton v Gardiner (1992) 177 CLR 378; R v Wagner (1993) 66 A Crim Rep 583; Sedmak v Police [2008] SASC 307; R v Issakidis [2016] NSWSC 1290; Gill v DPP (1992) 64 A Crim Rep 82; Police v Pakrou (2008) 103 SASR 124; The DPP v Shirvanian (1998) 44 NSWLR 129; R v Walton [1999] NSWCCA 452; R v Littler [2001] NSWCCA 173; Dupas v R [2010] HCA 20; Murphy v The Queen [1989] HCA 28; R v B, GN (2014) 121 SASR 43; R v Carroll [2002] HCA 55; R v H, GJ [2014] SASCFC 34; R v R, PA [2019] SASCFC 19; R v W, PK [2016] SASCFC 5; R v Swingler (1996) 1 V.R. 257; R v Cassebohm (2011) 109 SASR 465; R v Weygood [2020] SASC 7; Mullen v DPP [2020] SASC 10, considered.

R v M, A
[2020] SADC 13
Introduction

By Information dated 8 June 2018, the accused (the applicant) is charged with two counts of a sexual nature against the complainant, to whom I will refer as “S”. It is alleged by the prosecution that both offences were committed by the applicant on the one occasion between the 1^st day of July 1984 and 1^st day of July 1985 at the applicant’s residence at Elizabeth North.
·Count 1 charges the offence of Indecent Assault, the particulars being that between those dates, and at that place, the applicant indecently assaulted S by masturbating his penis.
·Count 2 charges the offence of Unlawful Sexual Intercourse, the particulars being that between those dates, and at the same place, the applicant had sexual intercourse with “S”, a person of or above the age of 12 years and under 17 years, by inserting his penis into “S’s” anus.
The applicant has been arraigned and has pleaded not guilty to both charges.
The trial of the applicant on those respective charges has been listed for hearing to commence on 24 February 2020.
It is not in dispute that the applicant was aged 19 years, and “S” was aged 13 years at the time of the alleged offences. Some 35 years will have elapsed between the date of the alleged offences, and the date fixed for the trial. The applicant is now aged 55 years. “S” is now aged 48 years.
The trial does not have a priority listing. Accordingly, no Judge has been allocated to conduct the trial.
·The applicant’s Rule 49 application
On 4 October 2019, the applicant’s solicitor filed the subject application pursuant to the District Court Criminal Rules, 2014, (SA) (the Rules of Court) seeking, inter alia, the following orders:
1.   That the above Information alleging one count of indecent assault and one count of unlawful sexual intercourse be permanently stayed in order to avoid an abuse of the court’s process.
2.   That a date for hearing submissions in support of the application be set down before the trial currently listed for 24 February 2020 and;
3.   Such consequential orders as this Honourable Court deems just and expedient.
It is well established that a Criminal Court has an inherent jurisdiction to prevent an abuse of its process. One remedy available to the Court is the power to grant a permanent stay. The power to stay proceedings for an abuse of process may be invoked to ensure that proceedings for an abuse of process will not result in an unfair trial.
It is also well established that such a remedy must only be exercised in exceptional circumstances.
In Shirvanian v The DPP (1998) 44 NSWLR 129, Mason P said:
Abuse of process covers a multitude of ills. The power to stay proceedings for abuse seeks to further a number of goals, including safeguarding an accused person from oppression and vexation, maintaining fairness in procedure and precluding the undermining of confidence in Courts generally.
In R v Walton (1988) 166 CLR 283, it was described as “a weighing process involving a subjective balancing of a variety of facts and considerations. Among those factors are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of a crime, and the need to maintain public confidence in the administration of justice”.
·Extension of time
Pursuant to the Rules of Court[1] the applicant was obliged to file an application for a stay no less than 7 calendar days before the first directions hearing - in this case by 8 August 2018.
[1] Rule 51(1) of the Rules of Court.
As will soon become apparent there have been gross delays in the prosecution of the subject counts.
·The first substantial delay was caused by “S” not reporting his allegations to the police until 13 August 1999, some 15 years after the alleged offences.
As to this first period, Parliament has acknowledged in s 34M of the Evidence Act that there may be significant delays in charges of sexual offences, and juries must be directed that there could be various reasons for a delay, even gross delays in reporting alleged offences. Courts must direct juries that they should not draw an adverse inference from a delay in making a complaint. In addition, in 2003, Parliament enacted s 72A of the Criminal Law Consolidation Act, which had the effect of abolishing any time limits previously imposed on prosecutions for sex offences.
In R v B, P [2016] SASCFC 30 the Court of Criminal Appeal approved dicta of the Full Federal Court in R v Lane that:
It is commonplace for there to be a substantial delay in the reporting of alleged sexual assaults, especially when the complainant is a child … many sexual assault victims are unable to voice their experience for a very long time. To adopt a rule that delay simpliciter justifies a stay of criminal proceedings would be to exclude many offences, particularly offences against children from the sanctions of the criminal law.
Parliament had provided in s 34CB of the Evidence Act for Judges to give directions as to a defendant being significantly forensically disadvantaged.[2]
[2] See R v Cassebohm (2011) 109 SASR 465; R v R, PA [2019] SASCFC 19; R v Weygood [2020] SASC 7; R v R, G [2019] SADC 1; R v Maiolo (No 2) [2013] 117 SASR 1; and R v W, PK [2016] SASCFC 5 at [35]-[42].
It will be for the trial Judge to direct the jury on the question of significant forensic disability.
The delay of 15 years between the alleged offences and bringing them to the attention of police was substantial. The applicant does not solely rely on this first period of delay.
·The second substantial delay of almost 15 years between November 2000 and January 2015 was caused solely by the police prosecuting authorities failing to pursue the prosecution in a timely fashion, indeed at all.
I am satisfied that it was not because a decision had been made not to prosecute, but a failure to undertake the work because of staff changes. While most concerning for the administration of justice the failure by the police was the consequence of negligence, and not misconduct intended to benefit the prosecution.
Not only was no work undertaken by the police prosecuting authorities but witnesses have died during that second period of 15 years, and documents and recordings were destroyed.
The file on this matter was retrieved by the police on 20 January 2015, when for the first time since 28 September 1999, “S” contacted the police to advise them that “he had not been informed of the outcome of this matter”.
The trial had initially been set for hearing on 20 May 2019, however some 3 days prior to that date the DPP notified the applicant’s solicitor that a witness, “R C”, a friend of “S” would not be called as a witness because of “mental health issues”.
The applicant was permitted to conduct further investigations, which led to the trial date being vacated.
It appears that a Judge of this Court gave leave to the applicant to issue the within application.
In so far as it is necessary I grant an extension of time for the making of the subject application nunc pro tunc to the date of filing on 4 October 2019.
The grounds asserted by the applicant for relief
The application centres upon two main complaints:
·Delay
It is asserted that the charged offences on the prosecution case occurred so long ago that, of itself, the applicant would not be able to receive a fair trial. A jury would see the complainant “S” a man, now aged 48 years, purporting to give evidence of his recollections of alleged events when aged 13 years. The applicant asks rhetorically how could he be expected to remember any relevant events from that time; conduct any investigations or locate relevant documents. He asserts that the memory of any remaining witnesses must be undermined and unreliable.
·Abuse of Process
It is asserted that the gross delay by the prosecuting authority between 2000 and 2015 has resulted in incurable unfairness to the applicant. The applicant asserts that some “crucial” witnesses have died; some other witnesses are no longer available to give evidence; various essential documents including medical records of “S” have been lost or destroyed, including recordings made of “S”, relevant at least to his credibility as a witness; and as evidence of a motive for “S” to lie.
The applicant asserts that his capacity to defend himself by producing exculpatory independent objective evidence, whether oral or documentary, has been compromised or destroyed.
·The evidence on the voir dire
All of the declarations filed in the matter were before me. In addition, the applicant tendered:
·Detailed written submissions in addition to the oral submissions of Mr Algie QC;
·An affidavit of “D A” sworn 17/1/20 as to his absence of memory of events dating back to 1999; the affidavit of “K G B” sworn 19/12/19 as to the destruction of documents and records of the predecessor practice in or about 2010; and the affidavit of “M L” sworn 20/1/20 about her discussions with “S” in 1999; the recording on tape of those discussions and the loss of those tapes since that time.
The DPP tendered a document entitled “time line” which set out the dates of the relevant events.[3] It also tendered a letter from the DPP dated 30 January 2020 which detailed its understanding of the delays in the conduct of the file.[4]
[3] Ex VD P1.
[4] Ex VD P2
Counsel for the DPP Ms Gray sought leave to cross-examine “Ms L” on her affidavit dated 20 January 2020. The basis of the request was that there were “some significant differences between the most recent affidavit and declarations made in 2017 and 2019”. The topic was the nature of the discussion between “Ms L” and “S”. However, the fact of the phone call is not in dispute.[5] It is not my function to determine the matters of credit at this time. It is not proper to proceed on a “Basha Enquiry”. What is relevant is that counsel for the DPP conceded that “S” had a poor memory of the detail of that call, and the potential witness to the phone calls “R C”, is no longer available as I have explained. I declined the application to cross-examine “Ms L”.
[5] See TP [3]-[5] dated 31/1/20.
In order to understand the applicant’s submissions, it is necessary to set out a chronology of the relevant events.
·Chronology
·The applicant was born on 1 February 1965.
·The complainant “S” was born on 2 July 1971.
·At the time of the alleged offences the applicant was aged 19. The complainant 13.
·The applicant, the complainant and the complainant’s mother were all involved with a Basketball Club. The complainant’s mother was secretary of that Club from 1983.
·On 24 August 1984 and 3 October 1984, after the alleged offences, the complainant attended a standard medical consultation at a General Medical Practice.
·In 1995 an arson at that practice destroyed all patient records.
·Some 15 years after the alleged offences “S” together with “R C” and “G C” confronted the applicant at a High School.
·On 11 and 12 August 1999, mobile telephone calls were made to the applicant, on the applicant’s case, by the complainant and associates with demands for monies. The applicant and “Ms L” attended upon the Adelaide Police Station to report the complainant’s conduct.
·On 12 August 1999 “Ms L” made contemporary notes of a telephone call from a person she believed to be “S” demanding the payment of money. On the same day, she received messages from the same individual on an answering machine. She provided the notes and the tapes to her solicitors.
·On 13 August 1999, the complainant reported the applicant to the police for the alleged offences.
·On 21 August 1999, a statement was taken by the police from the complainant.
·On 2 September 1999, the police obtained a statement from the complainant’s mother. The statement may be admissible as complaint evidence as to Count 1.
·On 6 September 1999; a second statement was taken by the police from the complainant’s mother.
·It was not until 11 September 1999 that a medical examination of the complainant was made by a doctor. A statement was also taken by the police from “R S”.
·On 23 June 2000, the applicant in the company of a solicitor was interviewed by police. During all this time, the police officer “M S” was the appointed investigating officer.
·There is no further entry after 28 November 2000 of any work on the investigation. There is no evidence of the completion of an opinion requested by the police.
·In 2002 to 2004 “Mr S” commenced employment with the Western Australian Royal Commission into police corruption before being appointed to the Western Australian Corruption and Crime Commission.
·In October 2002, the applicant’s then solicitors closed their file.
·On 19 April 2005, the complainant’s mother died.
·On 18 June 2008 the doctor died, having previously provided a report to the police as to the alleged cause of the complainant’s ongoing anal pain.
·In or about 2010 any documents or tapes of “Ms L” would have been destroyed.
·It was not until 13 January 2015 that the complainant contacted the police to query why he had not been informed of the outcome of this matter since about late 1999.
·On 20 January 2015, the file was retrieved from archives and returned to the police.
·On 7 August 2015, the applicant was interviewed by police.
·On 18 December 2015, the police took a fourth statement from the complainant.
·Between October 2016 and January 2018 police took statements from other witnesses, including “Ms L”.
·At that time, it became clear that records of attendances at the Basketball Club no longer existed.
·On 20 May 2019, the police took a sixth, and one day later, a seventh statement from the complainant.
Legal principles on permanent stay of proceedings
The relevant legal principles are well established.
In Jago v District Court of NSW (1969) 168 CLR 23, Deane J, said at 58:
The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court’s process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending upon the particular facts, provide examples. Where such circumstances exist the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed … an abuse of process, however, does not necessarily lead to a stay; there may be other ways of remedying the abuse.
In Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256 the High Court said:
Abuse of process cannot be restricted to defined and closed categories because notions of justice and injustice as well as other considerations that bear on public confidence in the administration of justice must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of abuse of process is at large or indeed without meaning. As already indicated it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are seriously and unfairly burdensome, prejudicial or damaging or productive of serious and unjustified trouble and harassment.
It is not possible to precisely delineate the categories of cases in which the power to stay proceedings for an ‘abuse of process’ might reasonably be enlivened.
In determining whether the power ought to be exercised, the court must first consider whether any unfairness, prejudice, or injustice has been established which might enliven the discretion.
It is however plain that a permanent stay of proceedings is an extreme step and will only be ordered in such cases where there is a fundamental defect of such a nature that nothing that a trial judge can do can relieve against its unfair consequences. R v Glennon (1992) 173 CLR 592 at 599.
There have been a large number of applications for a permanent stay in criminal proceedings recently in South Australian Courts. Each case depends on its own facts. Thus, while a permanent stay was granted in a case where the DPP had threatened a material witness for the defence,[6] such a stay was not granted in a case where a lesser remedy was adequate.[7]
[6]    R v Faiello [2015] SADC 48.
[7]    R v Ulman-Naruniec [2003] SASC 437; and [2002] SADC 118.
In Sedmak v Police [2008] SASC 307 Doyle CJ said:
A court cannot ensure that each case before it is heard and decided fairly, using that term in the way in which is commonly used. An important witness might die, or fall ill, or be unavailable when a case comes to trial. One party may have better quality representation than the other. One party might be better resourced than the other. Litigation can be affected by all kinds of events, accidents and influences, many of them being beyond the reach of the powers of the court…. that is why I emphasised the power to stay proceedings is not to be approached on the basis that the court will stay proceedings, simply because, in a general sense, it can be said that in some respect the proceedings will be unfair from the defendant’s point of view.
In R v Jacobi [2012] SASCFC 115, a matter which involved the ill-health of the accused, coupled with a long delay which had occurred since the alleged offences, the Court of Criminal Appeal said at [117]-[121]:
Public interest and the balancing exercise
In considering whether or not to grant a permanent stay of criminal proceedings the court must undertake a weighing process. I return to the guiding proposition set out in the joint judgment in Walton v Gardiner.⁸⁹
[T]he question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.
This balancing exercise has been described in other terms by the Court of Criminal Appeal in this state.⁹⁰
It is, therefore, not the case that any perceived unfairness in a trial will result in a permanent stay. It seems that at least three of the judges of the High Court in Jago consider that there must be something so exceptional in the apprehended unfairness that it cannot be corrected by other measures open to the court and that there is a necessary balancing requirement between the apprehended unfairness on the one hand and the public interest in trying persons charged with criminal offences on the other, the latter yielding only when continuation of the prosecution will lead to oppression and injustice and is thus inconsistent with the recognised purposes of the administration of criminal justice.
The “balancing exercise” referred to in the authorities, ordinarily, will have work to do. The nature and extent of any perceived unfairness must be weighed against the public interest in an effort to determine whether or not a continuation of the prosecution, as Bleby J has put it, “will lead to oppression and injustice and is thus inconsistent with the recognised purposes of the administration of criminal justice”.
The public interest in the disposition of charges of serious criminal offences involving alleged sexual abuse is manifest. There also is a public interest in complainants, concerning such matters, having the opportunity to present their allegations in court so as to seek public vindication. As a matter of justice, it is important that accusers have the right to have their allegations presented, tested and ultimately, where appropriate, accepted in an open court. In addition, although I have no evidence and I am in no position to make any findings in this next respect, where crimes of sexual abuse are concerned there may well be a significant therapeutic benefit and a sense of closure for the complainants concerned which, of itself, can be in the public interest. The fact that these complainants have not yet had their day in court before a judge and jury or a judge sitting alone is a relevant consideration when determining whether or not to grant a stay.
…
In R v Polyukhovich⁹¹ Cox J observed that “a fair trial is not the same as a perfect trial”. The fact that unfairness, even irreparable unfairness, and whether or not it derives from delay, necessarily will attend the trial of an accused will not of itself lead to a stay. In order to grant a stay, the court must be satisfied that there is an unacceptable risk to a fair trial. The question of whether the risk that an accused will not enjoy a fair trial is unacceptable is to be determined within the context of an assessment of the strength or importance of the public interest considerations relevant to the particular proceedings in question. In conducting the balancing exercise, the weight to be accorded to the public interest, in the disposition of charges of serious offences, in the conviction of those guilty of crime and in the need to maintain public confidence in the administration of justice⁹² will not be constant across all criminal proceedings.
The onus of demonstrating the existence of facts which would justify the granting of a stay is cast upon the applicant. It is also, plainly, a heavy onus.[8]
[8]    Williams v Spautz (1992) 174 CLR 509, at 529.

It is for the accused to demonstrate the existence of facts which would justify a stay given that the onus is a heavy one.[9]
[9] Williams v Spautz (1992) 174 CLR 509 at [559]
What needs to be established is such a fundamental defect that goes to the root of the trial of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.
The High Court has consistently determined that even extraordinary delay does not of itself amount to an abuse of process and there needs to be other factors which would render the continuation of the proceedings unfair or oppressive.
·The submissions of Counsel
·Counsel for the applicant
Mr Algie QC submitted that the Court ought to conclude that the applicant has been irredeemably compromised by the long delays.
He stressed that the application was not based solely upon the delay of 30 years.
In the trial, the prosecution must prove both the credibility and the reliability of the complainant beyond a reasonable doubt, and that the jury must reject the defence case.
He concentrated upon the loss of “Ms L’s” contemporaneous notes and the tapes. These were essential to the applicant’s case that the complainant is not a credible or reliable witness. He submitted that the issue was not limited to credibility. He submitted that the recordings provided objective evidence from the complainant’s own mouth that the complainant had a motive to lie, his addiction to drugs, and the demanding money by threats.
Mr Algie QC noted that the complainant had already placed a gloss on the telephone calls by asserting it was “financial compensation”, whereas the tapes of his own demands would expose it as a lie.
He submitted that the loss of the tapes in particular could not be fully appreciated by the jury through a forensic disadvantage direction.
Mr Algie QC referred to a number of authorities in which stays had been granted in consequence of the loss or destruction of relevant evidence including taped telephone calls. He referred in particular to the decision of Lander J. In Duncombe-Wall v Police (1998) 197 LSJS 398.
Lander J. had concluded that the loss of the tapes of the telephone calls “had the capacity to affect the assessment of the credibility of the competing accounts of events”, such that no direction which could have ameliorated the hardship to the accused.
Mr Algie QC submitted that there is still no adequate explanation at all as to the delay between the matter being referred to the DPP in November 2000 and 2015. He invited the Court to conclude that the applicant had acquiesced in the charges not being prosecuted over the next 15 years until 2015.
He referred to the affidavit of “Mr A”. It is not surprising that when he was asked whether, on 17 January 2020; he had any recollection of acting for the applicant, he had no such recollection. It was only when presented with copies of letters written by him in June 2000 that he was able to identify that he must have provided some services at the time. He had no recollection of what was discussed and could only rely upon what was referred to in the letter. His principal at the time, who had died in 2013.
Mr Algie QC addressed what he described as the large number of documents which had been destroyed. These included not only “Ms L’s” documents and tapes by about 2010, but also the medical records relating to the complainant at the surgery which were destroyed in 1995. The records were vital to determine whether the complainant had even raised the question of an injury to his anus.
The prosecution will seek to lead the report from the doctor who did not examine him until 1999. I repeat that he died in 2008. In addition, Mr Algie QC referred to the diary and the records of the relevant basketball clubs which have been destroyed.
He explained that the delay of now some 35 years is in no way the fault of the applicant. Mr Algie QC submitted that the integrity of the justice system is fundamental and an essential element of the maintenance of a free society, and that in this case the lost or destroyed evidence has denied the applicant a fair trial. He repeated that the issue at trial depends overwhelmingly upon the assessment of the complainant.
Mr Algie QC submitted that the complainant’s mother, who died in 2005 was an essential witness beyond the question of an initial complaint.
She had asserted that the complainant had continued to play for the Basketball Club; and that she had seen the applicant on numerous occasions after the allegations were made.
He also referred to the potential witness “R C”. He falls within the same category as “Ms L’s” tapes, as a witness to the demands for money, but would be expected to give evidence about the complainant’s financial position, drug and alcohol use and other surrounding circumstances.
He submitted that this was a most unusual case because there is no objective evidence of a crime being committed at all. The only “witness” left, the complainant, had elected to do nothing between 1999 and 2015. He finally submitted that there would be no shocking of the public confidence if a permanent stay was granted given the delay of 35 years caused solely by the complainant and the prosecuting authorities.
·Counsel for the DPP
Ms Gray submitted that by 1999 the applicant was aware of the complainant’s allegations. He was aware also of the assertion that the complainant had informed his mother that at least a sexual assault had occurred.
She submitted that the fact of a delay of 15 years between the date of the alleged offences and bringing the allegations to the attention of the police, is not exceptional, but relatively common for offences of this nature.
She submitted that there was no dispute that the complainant had confronted the applicant at the High School on 11 August 1999.
She submitted that there was no dispute that the complainant had spoken to “Ms L” on or about 12 August 1999. She submitted that the matters complained of by the applicant being the apparent loss of documents, and the deaths or unavailability of witnesses relate solely to matters of credit.
As to that submission I repeat that this is not mere credit, as the credibility and the reliability of the complainant is fundamental to the prosecution case.
Ms Gray submitted that what delay occurred after 1999 is unfortunate but not damning because the applicant was well aware in 1999 about the allegations, and was then able to make such enquiries as he was advised to make.
She submitted that this case had always involved the evidence from the only two persons at the applicant’s residence, namely the applicant and the complainant. No one else was present. While the loss of records made by Ms Lamont is unfortunate, she submitted that nothing turns upon it.
She submitted that all of the concerns expressed on behalf of the applicant can and will be properly addressed by a detailed s 34CA direction.
Finally, she referred to the decision of the Court of Criminal Appeal in R v H, GJ [2014] SASCFC 34, and submitted that not only did it involve similar delays, loss of taped conversations, it also involved allegations of the “theft” of relevant documents, and allegations of the failure of the police to properly investigate those matters.
A nolle prosequi had been entered in 1989, and it was not until 2011 that a fresh Information had been filed.
In that case the Court declined to order a permanent stay and explained that even if it proves not possible to secure a fair trial, a miscarriage can be corrected on appeal.
She repeated the submission that the matters raised by the applicant can be addressed by the trial Judge in very strong term in so far as they constitute a forensic disadvantage to the applicant.
Consideration
The delay in this case of some 35 years since the alleged events is substantial.
I accept however that it is now a common occurrence for trials to proceed decades after the alleged offence.
In R v B, GN [2014] SASCFC 109 allegations of persistent sexual exploitation of a child were the subject of a trial some 35 years after the event. An application had been made for a permanent stay of the Information. There was no delay in making a decision to prosecute as in the subject matter. Indeed, a nolle prosequi had been entered by the Crown in 1990 relating to charges alleging the same offences.
The Court of Criminal Appeal concluded that a nolle prosequi for the same offences is only one factor to be taken into account in determining whether the institution and prosecution of a new proceeding does comprise an abuse of process. There was no special category of abuse of process merely arising from the earlier entry of a nolle prosequi. That Court affirmed the principle that a decision whether to grant the stay is discretionary. It noted that the categories of an abuse of process are not closed. It affirmed that the Court engages in the balancing exercises between fairness to the accused and the legitimate public interest in the continuation of proceedings of those guilty of crimes, notwithstanding that the events had occurred some 25 years or more prior to the trial.
The Court had acknowledged that it was a very significant period of time and may have significant deleterious effects on the ability of an accused to defend himself against a charge. The Court referred to various amendments to the Evidence Act including s 34CB(2) that if the Court is of the opinion that the period time that has elapsed between the alleged offending and the trial that has resulted in a significant forensic disadvantage to the defendant, the Court must explain to the jury the nature of the forensic disadvantage and direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
The question of forensic disadvantage was discussed by the Court of Criminal Appeal in R v Cassebohm in 2011; R v Maiolo (No 2) in 2013; R v W, PK in 2016 and in R v R, PA in 2019. I accept that this will be a difficult task for a trial Judge to give detailed directions. The trial judge will be called upon to explain the nature of the forensic disadvantage to give detailed directions by making specific reference to the particular circumstances rather than a general delay. A delay of 35 years between the alleged offences and even some 15 years before bringing them to the attention of police was substantial and that even without reference to the loss of documents and indeed witnesses may of itself result in significant forensic disadvantage dependent upon the evidence called at the trial.
In R v Cassebohm Doyle CJ relevantly said:
I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of the charge even though one cannot say just how and even though one cannot be certain that it is so.
I repeat that there is no suggestion that the prosecution deliberately caused the delay to gain some advantage for themselves. Contrast Jago, supra at [30].
I turn to the questions of prejudice. In Police v Pakrou (2008) 103 SASR 124 at [142]. Kourakis J, as he then was, discussed the concept of forensic unfairness arising from the loss of evidence. He noted that Courts have always made findings of fact on less than all of the available evidence. The procedural and substantive rules are designed to meet the practical reality that findings of fact can often be made on imperfect evidence.
His Honour referred specifically to the decision of Lander J in Duncombe‑Wall, supra. His Honour said:
The decisive weight given by Lander J of the lost (tapes) is problematic. Common Law Courts have for centuries adjudicated disputes where there has been no “objective evidence” and the only evidence has been oath against oath.
His Honour referred to the dicta in Sedmak v Police (2008) SASC 307 that it is a balancing exercise, and the fact that the loss of evidence may be unfair must still be weighed against the public interest.
His Honour acknowledged there may be exceptional cases where an unacceptable risk of miscarriage subsists despite the protections to which he referred. In R v B, PB [2016] SASCFC 30 the Court of Criminal Appeal said that presumptive prejudice will not ground a stay and that actual prejudice must be shown. The accused on the balance of probabilities must prove the existence of an ineradicable prejudice.
One question relates to the death of the complainant’s mother. She provided a statement said to be evidence of an initial complaint. On its face, it is inconsistent with the complainant’s allegation in respect of count 2. It will be for the trial Judge to determine whether it constitutes on initial complaint as to unlawful sexual intercourse. It is however on its face relevant to the applicant’s ultimate submission that if such a complaint was made it was inconsistent with his allegation of unlawful sexual intercourse.
Undoubtedly it would have been helpful to the defence if the complainant’s mother could have been called as a witness.
She may also have been expected to give evidence as to whether the complainant had ever raised the suggestion of damage to the anus with her or any medical practitioner. Since the completion of submissions, I note that the DPP has obtained an alternative expert opinion as to the causes of the complainant’s medical condition in respect of his anus.
I don’t propose to discuss the authorities cited by counsel in any further depth.
I do however refer to the decision of the Court of Appeal (Victoria) in Hermanus v R [2015] VSCA 2.
It concerned a delay of 40 years since the alleged sexual offences against a child. The original complaint to the police had been lost. The Court considered the effect of a forensic disadvantage direction.
It adopted the principles detailed in the above authorities.
Relevantly it held that:
A trial will not necessarily be unacceptably unfair even where relevant documents recordings or other kinds of evidence have been lost or destroyed or witnesses have died so that the jury will be called upon.
Courts have always been called upon to determine issues of fact on less than all of the relevant evidence which might bear on the issues.
It stressed that the trial Judge “may be able to avoid obstacles to a fair trial by evidentiary rulings – including the exclusion of evidence which might be technically admissible but which might operate unfairly against the accused; and by direction to the jury [similar to our States s 34CA] designed to counteract any prejudice the accused might otherwise suffer”.
On this point the trial Judge will need to consider whether the report of the doctor ought to be admitted. Since the completion of submissions, the DPP has obtained a report from an expert Colorectal Surgeon dated 7 February 2020 which provides an alternative explanation for the cause of the complainant’s anal pain.
Conclusion
The delay in this case of 35 years since the alleged events is obviously substantial. The applicant will be adversely impacted by the delay.
However, he is in a slightly better position than an accused person facing a charge without notice for 35 years. He at least was made aware of the allegations in 1999.
The delay at least since 2000 has not been properly explained and is unacceptable. However, it does not constitute prosecutorial misconduct “as defined in the case law”. Further while I am satisfied that the applicant has suffered significant forensic disadvantage from the delay and the lost evidence, I do not accept that a permanent stay ought to be granted, having conducted the balancing exercise referred to in the case law.
The public interest in having the charges tried, on the authorities outweigh the obvious prejudice to the applicant.
Accordingly, I refuse the application for a permanent stay.