R v Molloy

[2022] QDC 210

DISTRICT COURT OF QUEENSLAND

CITATION: 

R v Molloy [2022] QDC 210

PARTIES: 

THE KING

(Crown)

V
GAVIN LINN MOLLOY

(Defendant)

FILE NO:

505/22

DIVISION:

Criminal  

PROCEEDING:

Application

ORIGINATING COURT: 

Gympie District Court

DELIVERED ON:

7 September 2022 (ex tempore)

DELIVERED AT:

Gympie

HEARING DATE: 

7 September 2022

JUDGE:

Porter QC DCJ

ORDERS:

1. Direction pursuant to s 132BA Evidence Act 1977 sought by the defendant refused.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – DIRECTIONS – DELAY IN PROSECUTING OFFENCE – Whether the jury should be warned about the disadvantage to the defendant arising from a delay in complaint – whether the defendant has suffered a significant forensic disadvantage because of the delay – where the mere existence of a delay does not establish significant forensic disadvantage – where the direction is given to the jury – where the direction is varied from the defendant’s proposed direction.  

LEGISLATION:

s. 132BA Evidence Act 1977

CASES:

Jarrett v R (2014) NSWLR 623

R v BDJ [2022] QCA 108

COUNSEL:

V. Adams for the Crown

N. Turner for the Defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Smith Criminal Lawyers for the defendant

1. The defendant has sought a direction from the Court pursuant to s. 132BA Evidence Act 1977 (the Act) in relation to delay.  The proposed direction is marked for identification and provides:

   This is a direction I must give you relating to the issue of the delay in complaint being made by the complainant and the prosecution of the defendant for these charges.

   It is most important that you appreciate fully the effects of delay on the ability of the defendant to defend himself by testing the prosecution evidence or bringing forward evidence in his own case.

   In this regard, I refer to the following specific difficulties encountered by the defendant in testing the evidence of the prosecution or bringing forward evidence of his own. These difficulties include but are not limited to:

   -the lack of or loss of documentary evidence:

   o    records from Curves Gym, including for the period of the allegations (2006/2007);

   o    the handwritten notes Mrs Fuller stated she had taken at the time she spoke with the complainant in 2010;

   o    photos of the home;

   -the lack of evidence from witnesses that could be expected to have been able to provide the court with relevant evidence:

   o    the manager and owners of Curves Gym, including for the period of the allegations (2006/2007);

   o    a person connected with the dance school the complainant is said to have attended at the time;

   -The capacity of witnesses, including the complainant, to accurately recall events that occurred and the possibility that their recollection has been distorted as a result of the frailty of memory, or for other reasons:

   o    inconsistencies within the complainant’s own evidence [one example: whether her and the defendant’s pyjamas were on or off at the time of Count 1]; inconsistencies between the complainant and other witnesses recollections about what disclosures she made to them…