R v Marks - [2004] SADC 181

District Court of South Australia
(Criminal)
R v MARKS
Ruling of His Honour Chief Judge Worthington (ex tempore)
6 December 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE
Application for permanent stay of proceedings - unlawful sexual intercourse - hung jury - accused presented for retrial - information amended to particularize new date - whether date material.
Held: Date became material during the trial and it would be unjust to allow new trial to proceed on different basis - application granted.
R v H 184 LSJS 68, applied.

R v MARKS
[2004] SADC 181

The accused is charged with having had unlawful sexual intercourse with the complainant between 1 September 2002 and 31 March 2003 when she was nine years old, by performing an act of cunnilingus on her. He went to trial in March 2004 on that charge, the particulars then being that it had occurred on 20 December 2002. The jury was unable to reach a verdict and this is a retrial. The accused has applied for a permanent stay on the basis that it would be unfair and oppressive and an abuse of the court’s process to allow the trial to proceed.
The Crown case can be summarised as follows:
The complainant’s mother has known the accused as a family friend for many years, and his wife’s parents, referred to by the complainant as ‘Nanna and Poppa’, have a house at Goolwa. The complainant and her elder sister would from time to time go with the accused and his wife to visit them at Goolwa.
In opening the Crown case at the trial the prosecutor said that the offence occurred on the last occasion that the complainant, without her sister, visited the accused’s wife’s parents, that is Nanna and Poppa, at Goolwa and that this was on the weekend commencing Friday, 20 December 2002. It is alleged that the accused picked her up and drove her to his house on the afternoon of the Friday and that on the way there he stopped to buy some drinks, probably alcohol. There was no-one else at home, the accused’s wife having already gone ahead to Goolwa. The idea was that the accused would drive the complainant down to Goolwa on the Saturday morning.
It is alleged that the accused and the complainant watched a television program. The complainant remembers it as ‘World’s Fastest Police Videos’. The Crown prosecutor advised the jury in opening that they would hear agreed evidence that a program called ‘World’s Wildest Police Videos’ was on Foxtel on Friday, 20 December 2002 at 8.30 pm
The complainant alleges that during that night the two of them, they being the only persons present, played a board game which involved answering questions, and if the player got the answer wrong, that player had to drink some alcohol. During the course of the game she had to take a number of drinks. The game also involved her changing from her bathers to her pyjamas and vice versa. Ultimately she says, the accused performed cunnilingus on her in his bedroom. The next morning he drove her down to Goolwa to meet up with the others.
The accused says that the case presented against him at trial was that he committed the offence on the night of Friday, 20 December 2002, that this was the case he met and that it would be unfair and an abuse of the court’s process for the DPP to now have him tried on a different basis, namely that the incident complained of occurred at some time between 1 September 2002 and 31 March 2003. The DPP has advised the court that if the matter proceeds, the information will be amended to change that period to being between 1 September 2002 and 31 December 2002, but it is common ground that the effect of such an amendment, if allowed, is not material for present purposes.
It is clear from the opening at trial that the Crown case was directed at the night of Friday, 20 December 2002. There are six references to that date in the course of the opening. Evidence was given by the complainant describing the events. When asked when it was that she last visited Nanna and Poppa at Goolwa, she said it was about two years ago. Her evidence about the date is equivocal. When asked what time of year it was, she said ‘October, about there’: (Tx17). She said that she had just gone on school holidays and when asked which holidays they were, she said ‘Christmas’. Cross-examination about this was conducted on the basis of it being a Friday during the Christmas school holidays. The declaration of the complainant’s mother identifies the date as Friday, 20 December 2002 but her evidence in court about the date is not completely clear. She spoke of school holidays, but whether she meant the Christmas holidays or the ‘last lot’ of school holidays before Christmas is unclear.
Whatever of that, the remainder of the prosecution case is clearly directed at identifying the date as 20 December 2002. By agreement, the investigating police officer, Senior Constable Buckley, gave evidence confirming that a program called ‘World’s Wildest Police Videos’ was shown at 8.30 pm on Foxtel on 20 December 2002. When asked why she was directing her inquiries to that date, she said that this was the date in the police incident report and that it had been mentioned by the complainant’s mother. In cross-examination she confirmed that all of the alleged offending was said to have occurred on that date.
The Crown case was closed by lunchtime on the first day of trial and in the afternoon the defence case was opened. The accused elected not to give evidence himself but called two witnesses, both of them giving evidence directed to showing that such an event could not have occurred on 20 December 2002. The first witness was a young man who was working on a new swimming pool at the accused’s home to get it ready for Christmas. The days on which he was there included Friday, 20th and Saturday, 21st December. It was his evidence that the accused was present on both the Friday and the Saturday and that he was getting about on crutches. The second witness was there on the Saturday and also said that the accused had his foot bandaged and was on crutches. Notes were tendered from the Ashford Hospital which showed that the accused had an operation on his ankle on 17 December 2002 and was discharged home on the next day, 18 December. Without going into all the details the overall effect of this evidence was that the accused was in Adelaide on the relevant dates, that he did not travel to Goolwa, that his wife was present at the home on both days and, perhaps most importantly, that the complainant was not at his home on either of those two days.
The prosecution then sought leave to amend the information to change the date to ‘in about December 2002’. The learned trial judge refused that application. However, in the course of summing up, his Honour directed the jury that the fact that the date may have been misstated in the particulars was not material. However, his Honour also told them that the accused came to court to meet a specific allegation, i.e., in relation to the date of 20 December. The jury were unable to reach a verdict and were discharged.
The relevance of dates in particulars of a charge will depend on the circumstances. In my opinion the principles applicable to the present case are conveniently summarised by Mullighan J in R v H (1995) 184 LSJS 68 at 77 where he said:
“There may be cases where even though the particulars of when an offence is alleged to have been committed is not an element of the offence, it may be material to the integrity of the criminal process and I think this is such a case. As Derrington J observed in Jacobs (supra) at p544:
‘Apart from the exceptions which have been mentioned, it is going too far to say that the time alleged in the indictment may become an element of the offence. Rather the correct view is that the nature of the allegations in the Crown case may be such that the prosecution is fixed to a certain date and it would be wrong to countenance any departure from that point when it is especially relevant to proof, alibi or the like.’
That date or period of time which is particularised may well become material in the context of the forensic issues as they develop at a trial. “
Mr Crowe, for the DPP, submits that the incident is sufficiently described by the circumstances of the occurrence, such that the date is not material, i.e. going to the accused’s home, the purchase of the drinks, the game, the sexual assault in the bedroom, and all of this on the evening prior to the last occasion on which the complainant went with the accused to Goolwa. It is submitted that therefore there is no injustice in allowing the trial to proceed with the amended dates. Mr Crowe relies on R v B [1999] SASC 403 and R v Durdin-Blake [2003] SASC 235.
I do not accept that submission. Even though the evidence of the complainant about the date was equivocal, the effect of the Crown case at trial taken as a whole, was that the offence took place on the night of Friday, 20 December 2002. That was the case the accused met, electing not to give evidence himself but calling witnesses to establish what was tantamount to an alibi. That was the case that was left to the jury, and the trial judge refused to allow the Crown to widen the dates.
Mr Algie, for the accused, submits that the learned trial judge erred in directing the jury about the date particularised in the information. He submits that because of this, the accused was deprived of what would otherwise have been an acquittal and, accordingly, that is an added reason why it would be unconscionable that there be a retrial: R v H per Mullighan J at 78.
In my opinion it is neither appropriate nor necessary to deal with that submission. In R v H Mullighan J was considering the overall conduct of a number of trials as part of an appeal against convictions. That is not the case here. I am concerned with what case the DPP seeks to present as a retrial and his Honour’s direction to the jury is not relevant to that.
While it may be correct to say that initially at trial, the date particularised was not an essential ingredient of the offence, the way the Crown case was presented and challenged, and was then met by the defence in evidence, meant that it became material as the forensic issues developed. As I have said, there can be no doubt that the Crown case, taken as a whole, was directed at that date and that was the case that the accused was obliged to meet. To permit a trial on the amended information with much wider dates would, in my opinion, not be a retrial. It would, in the circumstances, be a significantly different trial.
There is no criticism of the complainant. I accept Mr Crowe’s submission that there is no suggestion that she has changed her version of what occurred. But that is not determinative. Her evidence is only part, albeit a vital part, of the Crown case and it is the Crown case that has changed.
In my opinion, it would be unfair, unjust and oppressive to put the accused on trial again on this information.
For these reasons I grant the application and order that the information be permanently stayed.