R v Moar (No 2) - [2012] SADC 48

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MOAR (No 2)
[2012] SADC 48
Ruling of His Honour Judge Chivell
17 April 2012
CRIMINAL LAW
APPLICATION - STAY OF PROCEEDINGS
Applicant charged with five counts of indecent assault - delay – loss of opportunity to seek potential witnesses – presumptive prejudice – weakness of Crown case – uncorroborated evidence of complainants
Held: application refused
Criminal Law Consolidation Act, 1935 (SA) Part 8A, Division 3; Evidence Act, 1929 (SA) s 34L(5), referred to.
R v Moar [2012] SADC 47, discussed.
Walton v Gardiner (1993) 177 CLR 378; Rogers v R (1994) 181 CLR 251; Subramaniam v R (2004) 79 ALJR 116; Police v Sherlock [2009] SASC 64; Moevao v Dept of Labour [1980] 1 NZLR 464; Jago v District Court (NSW) (1989) 168 CLR 23; Williams v Spautz (1992) 174 CLR 509; Nicholas v R (1998) 193 CLR 173; R v Gagliardi & Filippidis (1987) 45 SASR 418; R v Vuckov & Romeo (1986) 40 SASR 498; Rona v District Court (SA) (1995) 63 SASR 223; Sedmak v Police [2008] SASC 307; R v Bunting & Others (No 2) (2003) 230 LSJS 397; R v King [2007] SASC 358; R v Noyes [2003] QCA 564; R v Littler [2001] NSWCCA 173; Jago v District Court (NSW) [1989] HCA 46; Aitchison v DPP (1996) 90 A Crim R 448; R v Moar [2011] SASCFC 16; R v Liddy [2010] SADC 80; Austin v R (1995) 84 A Crim R 374, considered.

R v MOAR (No 2)
[2012] SADC 48

This is an application pursuant to Rule 8 of the District Court (Criminal) Rules. Mr Moar seeks an order that the information dated 7 October 2008 be permanently stayed. The grounds for that application are set out in the amended application dated 20 January 2012:
(a)     the long delay from the date of the alleged conduct the subject of the charges;
(b)     the applicant’s poor physical and or mental health;
(c)     common humanity;
(d)     the applicant’s impaired memory; and
(e)     the weakness of the Crown case.
I made a finding yesterday that Mr Moar is unfit to stand trial.[1] The basis for that finding was Mr Moar’s disabilities as a result of cerebrovascular disease, complicated by his various physical ailments and psychiatric issues to which I will refer as his “health issues”.
[1] [2012] SADC 47
Counsel for the Director of Public Prosecutions and for Mr Moar both approached this matter on the basis that I should consider this application without regard to Mr Moar’s health issues. On that basis, I will have regard only to grounds (a) and (e) referred to above.
As to ground (c), one would hope that common humanity is a factor which influences all judicial rulings. To suggest that it would be inhuman to refuse a stay would be melodramatic and inappropriate. I do not take Mr Perrotta to be saying that. I can say no more about ground (c).
Having embarked upon an investigation pursuant to Part 8A, Division 3 of the Criminal Law Consolidation Act 1935 (CLCA), it is at least arguable that there is no longer power to grant a stay of proceedings, on the basis that Part 8A establishes a code in relation to persons who have been found unfit to stand trial, and that the procedure following such a finding is that laid down in the Act, and no other.
However, since this point was not argued, I will deal with the application before me because I have come to a firm view about the result and, in the event, it is unnecessary to decide the point.
General Principles
I have regard to the following general principles when considering the application for a stay:
·a court has jurisdiction to stay its proceedings where its processes and procedures may be converted into instruments of injustice or unfairness;[2]
·the categories of cases which may call for a consideration of the possibility of abuse of process are not closed;[3]
·fairness or unfairness defy “analytical definition” and involve much “intuitive judgment”;[4]
·the power to stay is not limited to unfairness or injustice attributable to delay;[5]
·there are two related aspects of public interest involved – firstly that the due administration of justice necessarily extends to ensuring that the courts’ processes are used fairly by the State and citizen alike – secondly, that public confidence in the administration of justice is maintained;[6]
·the test to be applied has been described as whether it would be unacceptably oppressive to permit the prosecution to proceed, whether it would be “unfair” to do so, whether it would be “an affront to the public conscience” to do so;[7]
·the power is discretionary and must be exercised judicially;
·the power is to be used only in the most exceptional circumstances, as a last resort;[8]
·the onus is on Mr Moar to demonstrate the existence of facts which would enliven the discretion to order a stay, and that a stay is the only remedy available in order to prevent abuse;[9]
·any perceived unfairness should be considered in conjunction with the legitimate public interest in the disposition of charges of serious offences.[10]
[2]    Walton v Gardiner (1993) 177 CLR 378 at 392-3
[3]    Rogers v R (1994) 181 CLR 251 at 255, Subramaniam v R (2004) 79 ALJR 116 at [26-7], Police v Sherlock [2009] SASC 64 at [46, 68]
[4]    Subramaniam, Sherlock (supra)
[5]    Sherlock (supra)
[6]    Moevao v Dept of Labour [1980] 1 NZLR 464 at 481-2, Jago v District Court (NSW) (1989) 168 CLR 23 at 29-30, Williams v Spautz (1992) 174 CLR 509 at 520; Walton v Gardiner (supra), Nicholas v R (1998) 193 CLR 173 at 256
[7]    R v Gagliardi & Filippidis (1987) 45 SASR 418 at 433, R v Vuckov & Romeo (1986) 40 SASR 498 at 521-522, Jago (supra) at 49
[8]    Jago (supra) at 31, 34, 60, 77, Sherlock (supra) at [50]
[9]    Williams v Spautz supra, at 529
[10] Rona v District Court (SA) (1995) 63 SASR 223 at 230, Sedmak v Police [2008] SASC 307, R v Bunting & Others (No 2) (2003) 230 LSJS 397
(a) Delay
Mr Perrotta argued that the delay in this case is extraordinary. However, each of the charges became statute-barred 3 years after the events in question. At the time of the alleged offences, each of the complainants was only 14 or 15 years old. They could hardly be criticised for not reporting the matters to the police at that time. The statutory ban was lifted on 17 June 2003. The first Police Incident Report was raised on 19 July 2003, just one month later.
It is unfortunately the case that delays of this magnitude are no longer exceptional in this Court.
It is true that it was not until 22 January 2007 that Mr Moar was interviewed and reported. This is a delay of about 3 ½ years. During this time all of the complainants were interviewed. It is also well-recorded that there was a massive load placed upon the police at the time which resulted from the lifting of the statutory ban.
In R v King,[11] the Court of Criminal Appeal repeated that delay alone cannot found an application for a stay of proceedings.[12]
[11] [2007] SASC 358
[12] per Kelly J at [34]
Further, Mr Perrotta submitted that the delay has had the potential to deny Mr Moar the opportunity to find and call witnesses. Layton J in King[13] pointed out that even where the accused can point to particular witnesses who are no longer available, this will not found an application for a stay unless “real prejudice” can be established, in particular by identifying the particular way in which the witness’ evidence could help the accused. For example, in R v Noyes,[14] former employees at a boys’ home had died in the 33 to 36 years between the events and the trial. Holmes J, with whom McMurdo P and Muir J agreed, said that the trial judge correctly refused to order a stay as it was “speculation” as to whether the witnesses (who were named) could have helped the accused’s case, and that “none was suggested to have any direct knowledge of the events”.[15]
[13] at [11]
[14] [2003] QCA 564 at [76-77, [81]
[15] cf R v Littler [2001] NSWCCA 173
In this case, no possible witnesses have been identified, let alone has it been established that they could give relevant evidence.
In his “Outline of Argument – Prejudice” Mr Perrotta purports to identify prejudice which he calls “anticipated prejudice”. However, this is no more than presumptive prejudice in another guise, in the absence of specific evidence that the answers to any of the questions posed would necessarily help Mr Moar’s case.
In my view then, the suggested prejudice is purely “presumptive”, and therefore insufficient.[16]
[16] Jago v District Court (NSW) [1989] HCA 46 at p 24 (Brennan J), p 49 (Toohey J), p 52 (Gaudron J)
As to ground (e) I accept that the allegations of indecent assault are not the most serious to come before the court. However, they are serious charges and there is a strong public policy in favour of the prosecution of such offences.[17]
[17] Rona (supra)
Mr Perrotta seeks to draw a comparison between this case and Aitchison v DPP.[18] In that case the accused was already in gaol for more serious sexual offending. Higgins J, as he then was, stayed the proceedings, saying that it would be “oppressive” to proceed to the extent that each case must be decided on its own facts. The situation here is entirely different. Mr Moar is also facing trial on other charges. I know nothing about the circumstances of those charges apart from what is in the law reports.[19] Mr Moar does not, to my knowledge, stand convicted of any relevant offence at this stage. The situation in Aitchison is more akin to the situation discussed by Nicholson DCJ in R v Liddy.[20]
[18] (1996) 90 A Crim R 448
[19] R v Moar [2011] SASCFC 16
[20] [2010] SADC 80
In my view, the fact that Mr Moar also faces another charge, yet to be determined, does not provide any ground for an application for a stay of these proceedings.
I accept that the evidence relied upon is that of the complainants alone. Again, this is not exceptional. Such crimes are normally committed without witnesses, and there is no longer a need for a warning that it is unsafe to convict in sexual cases unless the complainant’s evidence is corroborated.[21]
[21] Evidence Act, 1929 s 34L(5)
No other factor has been identified which makes the prosecution case weak for some specific reason. I am also influenced by the remarks of Owen J in Austin v R[22] that is a case where credibility is in issue, “there is limited scope for a judge hearing the application to form a view (one way or the other) as to the strength of the Crown case”.
[22] (1995) 84 A Crim R 374
For those reasons, I do not consider that there are grounds in the context of this case to resort to the exceptional remedy of a stay of proceedings.
The application is refused.