R v MSP
[2025] SADC 40
•16 April 2025
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MSP
[2025] SADC 40
Reasons for Ruling of his Honour Judge Handshin
16 April 2025
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
This is an application for a conditional stay of proceedings pursuant to Rule 39.1(1)(b) of the Joint Criminal Rules 2022. The applicant is charged with seven counts of unlawful sexual intercourse, contrary to section 49(3) of the Criminal Law Consolidation Act 1935 (SA). The alleged offending is said to have taken place between 1999 and 2001 against the applicant’s then teenage foster sister.
This matter has a protracted litigation history. There have been seven previous trials. This application was brought prior to the eighth trial of the charges against the applicant. At the sixth and seventh trials, the prosecution agreed to the tender of a document and agreed facts relating to allegations made by the complainant to her mother about having sex with a different foster brother, which allegations the complainant had denied making during her evidence and which she said would be false if in fact made. The agreements made at the sixth trial were adhered to and elaborated on at the seventh trial. The effect of the agreements has been that it was not necessary at the sixth or seventh trials for the complainant’s mother to give evidence because the prosecution accepted that, based on affidavits sworn by the mother, the allegations were in fact made and it was appropriate to agree as much.
Shortly before the eighth trial, the prosecution advised the applicant’s lawyers that it would not adhere to the agreements and would instead call the complainant’s mother to give evidence in person, whose evidence it contemplates challenging at least on the grounds of reliability. On the hearing of the application, a further affidavit from the complainant’s mother was tendered in which she expressed difficulty remembering the disclosures made by her daughter, which she had previously deposed to with clarity.
The applicant contends that the agreements reflected an acceptance by the prosecution of the credibility and reliability of the evidence of the complainant’s mother about the false allegations made by the complainant and that, having invited a judge of the Court to determine the applicant’s guilt or innocence on that basis, it is an abuse of process for the prosecution to renege on the agreements and put in issue whether the false allegations were in fact made.
Held: The application for a conditional stay is granted. The conduct of the parties at the sixth and seventh trials created a state of affairs in which there was no contest that the complainant had made the false allegations to her mother. The jury at the sixth trial were going to be invited to determine the applicant’s guilt or innocence on the basis that they should not doubt the allegations were made. The trial judge at the seventh trial was told by the prosecution that he should find it proved that the allegations were made by the complainant. The withdrawal from the agreements, combined with the intention to now challenge the evidence of the complainant’s mother (to the extent it can given the prosecution propose to call her) and put in issue whether, as a matter of history, allegations it previously accepted were made were in fact made, is an abuse of process. The withdrawal from the agreed position is either productive of such unfairness or unjustifiable oppression or would otherwise bring the administration of justice into disrepute, so as to warrant the grant of a stay until the grounds on which the abuse arises are addressed.
Criminal Law Consolidation Act 1935 (SA) s 49(3); Criminal Procedure Act 1921 (SA) s 158(3); Evidence Act 1929 (SA) s 53, referred to.
Park (a pseudonym) v The King [2022] SASCA 1132; Nguyen v The Queen (2020) 269 CLR 299; R v Quist [2017] SASCFC 37; Mahmood v Western Australia (2008) 232 CLR 397; Spence v Demasi (1988) 48 SASR 536; R v H, ML [2006] SASC 240; Barry v Police [2009] SASC 295; R v Helps [2016] SASCFC 154; R v Golubovic [2016] SASCFC 144; R v Taheri [2017] SASCFC 92; R v Garrod [1997] Crim LR 445; Dyers v The Queen (2002) 210 CLR 285; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; Rogers v The Queen (1994) 181 CLR 251; Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; Williams v Spautz (1992) 174 CLR 509; PNJ v The Queen [2009] HCA 6; Jago v District Court (New South Wales) (1989) 168 CLR 23; Willmot v Queensland (2024) 98 ALJR 1407; La Rocca v The King [2023] NSWCCA 45; R v Glennon (1992) 173 CLR 592; Dupas v The Queen (2010) 241 CLR 237; Moti v The Queen (2011) 245 CLR 456; Barton v The Queen (1980) 147 CLR 75; R v Horseferry Road Magistrates’ Court; ex parte Bennett [1994] 1 AC 42; Truong v The Queen (2004) 223 CLR 122; Walton v Gardiner (1993) 177 CLR 378; Whitehorn v The Queen (1983) 152 CLR 657; Richardson v The Queen (1974) 131 CLR 116; M, RS v The Queen [2018] SASCFC 37; R v Edwards (2009) 83 ALJR 717; Director of Public Prosecutions (Vic) v Tuteru [2023] VSCA 188; R v Taufahema (2007) 228 CLR 232; Jiminez v The Queen (1992) 173 CLR 572; Ibrahim v Police [2013] SASCFC 70; Williams v The State of Western Australia [2021] WASCA 33; R v Busson [2008] SASC 89; Police v Pakrou (2008) 103 SASR 124; LJW v The State of Western Australia [No 2] [2007] WASCA 275; R v Mohi (2000) 78 SASR 55; Chu Piu-wing v Attorney-General [1984] HKLR 411 ; R v Betesh (1975) 30 CCC (2d) 233; R v Crneck (1980) 116 DLR (3d) 675 ; Malvaso v The Queen (1989) 168 CLR 227; GAS v The Queen (2004) 217 CLR 198; Barbaro v The Queen (2014) 253 CLR 58; R v Davis (1995) 57 FCR 512; Jack v Smail [1905] HCA 25; (1905) 2 CLR 684; Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573; R v Collie [2005] SASC 148; (2005) 91 SASR 339; Duncan (1981) 73 CR App R 359; Callaghan v The Queen [1993] QCA 419; [1994] 2 Qd R 300; Ridgeway v The Queen (1995) 184 CLR 19, considered.
R v MSP
[2025] SADC 40Criminal jurisdiction
The applicant is charged on Information with seven counts of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). The proceedings, which have a chequered history, were listed for trial before me, sitting without a jury, on 6 August 2024. On the morning the trial was due to commence, the applicant sought an order staying the proceedings in response to a shift in the position being taken by the prosecution as to how it proposed to present its case, in particular, with respect to the tender of certain exhibits and adherence to factual agreements made between the parties and presented to the Court at two previous trials of the Information.
By way of overview, the alleged offending is said to have taken place between 1999 and 2002. The complainant, AW, was, at the time, the applicant’s teenage foster sister. She was living with the applicant’s family during the period of alleged offending and was between 13 and 16 years old. The applicant was between 27 and 29 years old. Prior to taking up residence with the applicant’s family, the complainant had lived with another foster family, who I will refer to as the N family. The eldest son of the N family was LN, who was some 6 to 8 years older than the complainant.
The prosecution case is that after the complainant moved in with the applicant’s family, he sexually assaulted her in the family home or on the family farm. Proof of the charged acts is entirely dependent on the complainant’s account and the credibility and reliability of her evidence is likely to be the critical forensic issue at trial.
The application, which is brought pursuant to Rule 39.1(1)(b) of the Joint Criminal Rules 2022, is in the following terms:
1. That the criminal proceedings against the defendant in this matter are stayed unless and until the Director of Public Prosecutions (SA) indicates that he will consent to the tender at the trial of Exhibits D12, D13 and P18 from the previous trial of these proceedings before His Honour Judge Boylan and will agree that the agreed facts and evidence in Exhibits D12, D13 and P18 are true and correct and should be accepted as true and correct by the Court.
The application was supported by an affidavit[1] sworn by the applicant’s solicitor that set out the history of the proceedings and exhibited various passages of transcript, as well as the exhibits and agreed facts the subject of the application.
[1] VDD1, Affidavit of Patrick Deegan, 6 August 2024.
The context of the application requires some further elaboration.
The trial before me was to be the eighth trial of these charges. Five previous attempts to try the charges have resulted in mistrials. The applicant has twice been convicted, most recently in 2021 following a trial before a judge sitting alone (the seventh trial), but appeals against conviction have subsequently been allowed and re-trials ordered.[2]
[2] Park (a pseudonym) v The King [2022] SASCA 132.
At the sixth and seventh trials, the prosecutors then appearing on behalf of the Director of Public Prosecutions made apparently informed and authorised decisions to agree facts relating to out of court statements made by the complainant (which became exhibits D13 and P18 at the previous trials) and to agree to the tender of a particular document (which became exhibit D12). The agreed facts, and exhibit D12, concern matters said to be of considerable importance to a proper assessment of the complainant’s evidence and it was common ground at the seventh trial, in particular, that they demonstrated the complainant had, on a number of occasions, made false allegations to her mother (DB) that she had sex with LN. The decision to agree facts, based on affidavits sworn by the complainant’s mother and exhibit D12, reflected an acceptance by the prosecution of the credibility and reliability of the prospective evidence of the complainant’s mother on this topic.
At the seventh trial, the Director also tendered a copy of the transcript of the applicant’s incomplete evidence in chief at the sixth trial (P16 at the seventh trial and VDD8 before me).
As can be discerned from the terms of the application itself, the gravamen of the applicant’s complaint is that the proceedings ought to be conditionally stayed because, in the lead up to the eighth trial, the prosecution put the applicant on notice that it was no longer prepared to agree the facts in D13 and P18 or agree to the tender of D12 and P16, as it had at the sixth and seventh trials.
After the applicant was advised of the change in the prosecution position, a further affidavit from the complainant’s mother was disclosed which, as I will discuss in more detail later in these reasons, does not in any respect suggest that what she had previously deposed to was false or incorrect but which would appear to convey a not insignificant deterioration in her memory about the false allegations.
The prosecution position on the hearing of the application before me was not only that it was intended to call the complainant’s mother in lieu of agreeing the facts concerning the disclosures made by the complainant but that it was also on the cards that the prosecution would challenge at least the reliability of the mother’s memory of the conversations. Further, the prosecution is now declining to tender the transcript of the applicant’s incomplete evidence from the sixth trial.
The prosecution otherwise declined to adduce any evidence of the circumstances in which the original agreements were made, why they were wrong, inappropriate or otherwise ought not be maintained, and the matters taken into account when making the decision not to adhere to agreements that had been put to two consecutive triers of fact in this Court and upon which those triers of fact were to be or were invited to determine the applicant’s guilt or innocence.
The situation in which the applicant now finds himself because of the prosecution’s decision to withdraw from the agreements is that his ability to establish the prior disclosures made by the complainant to her mother, to which the mother deposed with some precision in earlier affidavits as reflected in the facts agreed by the prosecution, has been substantially compromised. The making of and adherence to the agreements by the prosecution at the previous two trials had the consequence that the mother did not give evidence at a time when the false allegations made by the complainant were clearly fresher in her mind.
The making of the agreements at the two previous trials of the charges also had the effect of rendering it uncontroversial that the complainant in fact made the false allegations recounted in her mother’s affidavits.
The issue arising on this application is whether the prosecution’s decision to renege on the agreements it had previously made at two trials of these charges in relation to or as reflected in D12, D13, P16 and P18 would render the continuation of the proceedings an abuse of process, either because a trial at which these agreements are not adhered to would be so unacceptably unfair or unjustifiably oppressive to the applicant or would bring the administration of justice into disrepute.
In the very unusual and exceptional circumstances of this case and bearing in mind the tortured litigation history it has, I am satisfied that the prosecution’s refusal to adhere to the agreements it previously made and invited a judge of this Court to act upon, in combination with the deterioration in the mother’s memory, make it unfair, oppressive or unjust to prosecute the trial of these charges without honouring the agreements. By entering into and maintaining the agreements at the last two trials of the charges, the parties created a state of affairs which made it unnecessary for the mother to be called and hence denied the applicant the opportunity to secure evidence from her when her memory about the disclosures was uncompromised. Having previously accepted that the disclosures were in fact made by the complainant, and having invited a judge of this Court to make that factual finding, the prosecution of these charges (1) absent the agreements (2) knowing the mother is now unlikely to be able to remember the disclosures and (3) proposing to challenge any evidence the mother did give about the disclosures, is unjustifiably oppressive or unfair.
I would further observe that there was nothing unusual or irregular about the decision to agree that the complainant had made the disclosures, in accordance with the mother’s anticipated evidence. It is common-place for the prosecution to agree that a witness has made statements out of court that are inconsistent with their evidence in court or which otherwise demonstrate the telling of a lie. That is often a pragmatic and expeditious course to take where the witness to whom the statement was made or the lie told is considered to be credible and reliable. In the absence of evidence to the contrary, I am unable to conclude that the making of the agreements was either factually or legally inappropriate.
There is, in addition, a significant public interest in holding prosecuting and investigative authorities to agreements or representations they make absent good reason not to, particularly where others involved in the criminal justice system have relied to their detriment on those agreements or representations. That is what transpired in this case. In circumstances where the prosecution has declined to put on evidence explaining why it will no longer maintain the agreements, it would bring the administration of justice into disrepute for the Court to permit a trial to be run at which the prosecution will seek to controvert facts it previously accepted to be established.
Conversely, I am not satisfied that the refusal to tender the applicant’s incomplete evidence in chief from the sixth trial, whether viewed in isolation or in combination with the other complaints advanced by the applicant, gives rise to an abuse of process. For reasons I will come to, I consider that the applicant’s evidence was self-serving and thus inadmissible. Whilst the prosecution previously agreed to tender the evidence, doing so conferred on the applicant a positive and unjustifiable forensic advantage. The tender of the evidence was not necessary for the prosecution to discharge its responsibility to put before the trier of fact all cogent, available and admissible evidence and I am not satisfied, given the content of the applicant’s evidence, that it would otherwise amount to an abuse of process for the prosecution not to tender the record of his evidence at the eighth trial.
I would stay the proceedings until such time as the grounds upon which I consider an abuse arises are remedied. The nature of the order I make is appropriately viewed as an order for a conditional stay. It is within the power of the prosecution to discharge the condition on which the stay is granted. If the prosecution elects to do so, the trial will proceed in the usual way.
History of the proceedings and the agreements
It is necessary to set out in some detail the previous agreements made between the parties and the conduct of the prosecution case at the sixth and seventh trials together with the circumstances in which the prosecution has indicated its intention to withdraw from the agreements, to the extent they are established by the evidence put before me on the application. The applicant argues that the very unusual history of this matter, together with the thought and attention that went into the agreements made on behalf of the Director at the sixth and seventh trials, is an important part of the context in which the consequences of the departure from the agreements are to be evaluated.
The sixth trial – Exhibits D12 and D13
The genesis of the agreements can be traced back to a passage of cross-examination of the complainant at the sixth trial by senior counsel then acting for the applicant in which the complainant was asked whether she had sex with her previous foster brother, LN, and whether she told her mother on a number of occasions that she was having sex with LN. The complainant denied both propositions. I set out the relevant passage in full:
QWith respect to [LN], you never had any sort of sexual relationship with him, did you.
ANo.
QThere was never any sex between you and [LN] -
ANo.
Q- was there.
ANo.
QThat never happened.
ANo.
QYour mother is [DB], isn't she.
A[DB], yes.
Q[DB], sorry. That's a yes.
AYes.
QThat's your biological mother.
AYes.
QYou told her on a number of occasions, didn't you, that you were having sex with the Ns’ son, [LN].
ANo. No.
QYou said that to her in about 1999, didn't you.
ANo.
QAnd you said that to her again in 2002, didn't you.
ANo. It never happened.
QPardon.
AIt never happened.
QWell, I know that it never happened, but you said to your mum that it did, didn't you.
ANo. No.
QYou said specifically to your mum that you had had sex with [LN] -
ANo.
Q- didn't you.
ANo.
QIf you can be shown this document. I want you to read that document. You've read the document.
AYes.
QHaving read that document, do you agree that you told your mum that you had had sex with the Ns’ son, [LN].
ANo.
QDo you agree that you told her that in about 1999.
ANo.
QDo you agree that you said to your mother that it was a mutual thing.
ANo.
QAnd that you were not upset by it but you were just telling your mum about it.
ANo.
QIf you told your mum that you had had sex with [LN], that would not be true, would it.
AIf I told her that -
QIf you had said to your mum that 'I had sex with [LN]’, that wouldn't be true, according to you.
AThat's right.
QIf you had said that to your mum, that would be a lie to your mother.
AYes.
QIf you said it to her, you would be lying to her about having had sex with your foster brother.
AYes.
QAnd that's exactly what you did do, you did tell your mother that, didn't you.
ANo.
It can be seen that in this passage of cross examination, the complainant:
1.Denied having a sexual relationship with LN.
2.Denied telling her mother, DB, on numerous occasions that she was having sex with LN.
3.Denied telling her mother in 1999 and 2002 that she had sex with LN.
4.Agreed that if she had told her mother she had sex with LN, that would be a lie.
The document shown to the complainant during this part of the cross examination was subsequently received and marked for identification as D12, the prosecutor having taken an objection to the tender of the document.
The admissibility of the document was revisited later in the course of the trial and senior counsel for the applicant pressed its tender. Counsel then appearing for the prosecution, Mr Wilson, informed the trial judge (Cuthbertson DCJ) that he did not object to a redacted version of MFID12 being tendered.[3] He explained the prosecution’s considered position with respect to the tender of the document this way:
MR WILSON: I don't object to a redacted version of the MFI being tendered that removes the first six lines which are a sort of hearsay commentary by the complainant's mother to the case worker about general behavioural traits that the mum believes that [AW] has. So, I say it shouldn't be tendered as a means to get in that sort of - her fairly damning view of her daughter's character, which isn't required to establish what defence want to establish which is that, contrary to what she said in evidence, [AW] told her mother previously about an allegation or made an allegation of sex with one of the foster carers' sons.
To supplement that being tendered in a redacted form, the prosecution would be prepared to agree a fact that makes some reference to the content of [DB], the mother's third statement, dated 1 February 2018. This is the statement that was taken effectively at the request of Judge Muscat at the first trial.
[3] VDD1, Affidavit of Patrick Deegan, PD1, pp 10-11.
After some discussion about the possibility of MFID12 being tendered pursuant to s 53 of the Evidence Act 1929 (SA), counsel for the prosecution had a further exchange with the trial judge:
MR WILSON: My preference would be to agree facts that cover what defence want in and sort of bypass those provisions of the Evidence Act so that the jury have some information before them that '[DB] is the biological mother of the complainant. If called to give evidence, she would say this' and -
HIS HONOUR: Maybe 'If called to give evidence she would say this'. I don't know. I had in mind it might be that it's an agreed fact that this is a standard document filled in by an employee of the Department of Human Services when they have contact with a member of the public and that the workers are trained or enjoined or requested to make sure of the accuracy of the material they record and only record material that they're certain is correct, particularly if it involves serious allegations. I don't know. I'm just raising these matters. That's all I'm doing.
MR WILSON: Yes. My friend might be in a better position to indicate whether there is any room to move on the removal of the first six lines of that entry. That's something that I would press to be argued if we can't come to some agreement about that, but I don't have any problem, as I've let my friend know, in presenting some facts before the jury from which they can -
HIS HONOUR: There is nothing to stop you from calling -
MR BARKLAY: Jean Kenny.
HIS HONOUR: Who's [DB]?
MR WILSON: She's the biological mother and she's the one whose statement I have referred your Honour to. So, when I was alluding to the fact of what she would say if called, I was referring to what she said on this specific topic at paras.3 and 4 of her third statement dated 1 February 2018. So, in effect, a combination of what she would say she did, namely, that -
HIS HONOUR: There is nothing to stop you from calling [DB] if there is any clarification needs doing.
I interpolate that in paragraphs 3 and 4 of DB’s affidavit of 1 February 2018 (VDD3 on this application), to which Mr Wilson was referring, DB had written:
3. I have been asked by Detective JOHNSON if I remember [AW] telling me she was in a ‘physical relationship’ with the [N’s] youngest son and that this was ‘by mutual consent’. I don’t have a memory of her saying this to me.
4. What I do remember is [AW] telling me that one of the [N’s] son, I don’t remember which one was touching her in the bath and it hurt. I remember [AW] indicating by putting her hands on her vagina area saying, “There”. [AW] would rock when she told me this. [AW] has told me this on more than one occasion. On one of these occasions she was telling me about the [N’s] son I remember she has come up close to me and whispered in my ear, “I don’t like him.”
5. I also remember that when the access visits ended [AW] would get quite upset and not want to go. If the [N’s] son was there she seemed to be even more distressed and would grab hold of me and it would take other people to pry her away from me.
6. I have on a number of occasions I have called Welfare and told them about what [AW] has told me. [AW] has had a number of Case Workers and I can’t remember who I told specifically. I would ask them to investigate but they didn’t want to know.
After the jury were sent home for the day to allow any revisions to the document to be implemented, there was further discussion between counsel and the trial judge about the effect of admitting the document pursuant to s 53 of the Evidence Act. The exchanges indicate that counsel for both parties had given careful consideration to their respective positions.
It appears that at the conclusion of the day’s sitting, counsel corresponded with each other via email in relation to MFID12 and agreed facts. In that correspondence, the prosecutor initially indicated that he had some reservations about the admissibility of MFID12 in light of the proposed agreed facts, and confirmed his position that he was ‘…not going to positively suggest that [the complainant] did not tell [DB] something about one of the [N] boys re: sex…’[4] Ultimately, however, the prosecutor indicated his agreement to a revised version of MFID12 being tendered together with what became D13. In further correspondence with senior counsel for the applicant, the prosecutor reiterated ‘I do not propose to suggest to the jury that the note is a mistake or that they should doubt whether [the complainant] told her [DB] about sex with [LN].’[5]
[4] VDD2.
[5] VDD2.
When the trial resumed, senior counsel for the applicant informed the trial judge that an agreement had been reached between the parties and it was proposed that an amended MFID12 would be tendered as a business record and supplemented by agreed facts.[6] It must have been contemplated by both parties that, upon its tender, D12 (in combination with D13) was capable of establishing not only that DB had told the social worker that the complainant said she had sex with LN; but also the underlying proposition – that the complainant had in fact told DB as much. That must follow because, in the context of the forensic dispute, evidence of what DB told the social worker was not relevant. What was relevant, in light of the complainant’s denials, was that she had told DB about having sex with LN.
[6] VDD1, Affidavit of Patrick Deegan, PD1, p 20.
I set out the content of the document that was received as D12:
Date-Time
Nature-Record of Contact
13/8/02
T/c to [DB] to see how things are going.
Re [AW] telling her of having sex with Ns’ son [LN]. [DB] said [AW] first told her about this 3 years ago, then mentioned it again last year. Then recently mentioned it again. [AW] had said that it was “a mutual thing” and just mentioned it again “by way of information”, not because she was upset by it.
As to the possible conflict between D12 and what appears in paragraph 3 of VDD3, I was told by Mr Henchliffe KC who now appears for the applicant, that the terms referred to in VDD3 and which were put to DB by the investigator for comment were in fact derived from a different file note which was not tendered at the sixth trial.[7]
[7] T82.
Returning to the trial, there followed discussion about what the jury should be told the document established:
HIS HONOUR: Do you want me to - this is addressed to both of you - say to the jury that they can use the material contained in this to infer that [AW] told her mother that she'd been having sex with the Ns’ son, [LN], first mentioning it in about 1999?
MR BARKLAY: Yes, your Honour.
HIS HONOUR: You want me to tell the jury that?
MR BARKLAY: Yes.
HIS HONOUR: In fact, ultimately direct the jury that -
MR BARKLAY: Yes.
HIS HONOUR: - that's the use that can be made of it.
MR BARKLAY: Yes.
HIS HONOUR: What do you say?
MR WILSON: I don't have any problem with your Honour -
HIS HONOUR: That's correct, isn't it?
MR WILSON: Yes. The culmination of the agreed facts -
HIS HONOUR: Shall I go on and tell them - I'm not sure about this, but I think it's right - that it can't be used as evidence that [AW] did have sex with [LN].
MR WILSON: That would be right, your Honour.
HIS HONOUR: The Act talks in terms of drawing inferences, doesn't it, I think, from memory?
MR BARKLAY: Yes. I don't ask that your Honour say anything about that at the moment.
HIS HONOUR: All right, I won't say anything about that.
MR BARKLAY: But what your Honour said before in terms of what your Honour will tell the jury in terms of -
HIS HONOUR: I will tell them that when they get it.
MR BARKLAY: Thank you.
HIS HONOUR: So that still leaves the sticking point about the MFI exhibit being the one that is - you could hand up what one might describe as an unmarked copy and substitute that as MFI D12.
MR BARKLAY: Yes.
HIS HONOUR: Then tender the agreed facts and then seek to tender MFI D12 which I would permit to go in as evidence as a business record, telling the jury that they can use it to draw the inference that [AW] told her mother in about 1999 and repeated it, that she'd been having sex with -
MR BARKLAY: [LN].
HIS HONOUR: - [LN].
When the jury returned to court, D12 was admitted and a series of agreed facts, which became D13, were tendered. The agreed facts were:
1. Jean Kenny was employed by the Department of Human Services in South Australia (‘the Department’) from 1985 until November 2003.
2. Jean Kenny was a qualified social worker and worked in a number of offices in the metropolitan area.
3. Jean Kenny met [AW] when she was still in placement with the N family in Karoonda.
4. Jean Kenny was the Ns’ foster support person, but she did not have direct contact with [AW] while she was with the Ns’.
5. When [AW] went to live with the [P’s], Jean Kenny became her case worker ([AW] was around 13 or 14 years old).
6. As [AW’s] case worker Ms Kenny was responsible for overseeing [AW’s] welfare.
7. The Department keep records in relation to children they care for during their placements.
8. Ms Kenny would make notes soon after she had contact with anyone who was involved in [AW’s] life.
9. The typed notes in Exhibit D12, made by Ms Kenny, form part of the business records of the Department.
10. It is important that conversations that include complaints of a sexual nature are accurately recorded. Ms Kenny understood the importance of keeping accurate records for the Department about children the Department cared for.
11. Exhibit D12 described as a ‘continuation sheet’ is a typed record of a telephone conversation between Ms Kenny and [DB] on 13 August 2002 about [AW].
12. If called to give evidence, [DB] would say that she contacted the Department of Human Services on 13 August 2002 and relayed to Ms Kenny what [AW] had told [DB] about [LN].
13. The typed notes of the telephone conversation referred to in exhibit D12 were made by Ms Kenny shortly after the conversation she had with [DB].
14. The typed notes in exhibit D 12 made by Ms Kenny is an accurate record of the conversation she had with [DB].
The source of agreed fact 12 would appear to be paragraph 6 of VDD3 but I note, in any event, that the prosecution’s position on this application is that I should infer that the agreements were made in accordance with instructions.
The trial judge then gave the jury a number of directions about the use to be made of D12 and D13, culminating with the following:
Now ladies and gentlemen, you can use the evidence in the business record D12, if you want to, to find that the mother of the complainant told the social worker that the complainant had told her that she'd been having sex with [LN] and the relevance of it might be that the evidence of the complainant is that she never had sex with [LN] and she never told anyone she had sex with [LN] and here she is, if you accept the content of the note as a reasonable possibility, here she is saying what is a very serious allegation to make if it's not true, 'Me being underage, I've had sex, a very serious offence, with an adult' and you'll hear submissions at the end of the trial about it from both counsel if they wish to make submissions. It might be suggested to you that you shouldn't accept beyond reasonable doubt someone who's prepared to say 'I've been having sex with someone' who, if it's true, would be guilty of a very serious offence.
So I hope that explains to you how you can use that evidence from the business record and that's how it gets before you other than through a witness because it is a business record.
Yes, anything either party want me to amend or add in relation to that?
Thereafter, the prosecution closed its case and the applicant elected to give evidence. Before the applicant’s evidence in chief was completed, a mistrial was declared for reasons unknown to me.
To summarise the state of affairs at the close of the prosecution case in the sixth trial: the prosecution had agreed to the tender of the document initially marked MFID12 in revised form. The prosecution agreed further facts (D13) relating to the accuracy and reliability of the contents of what became D12. Agreed fact 12 was presumably incorporated to confirm the source of the information contained in D12 and to make good the proposition put to the complainant in cross examination, namely, that she had told her mother about having sex with LN, contrary to her denials.[8]
[8] The latter would seem to be an inference that could be drawn from the document, in accordance with s 53(1)(b) of the Evidence Act 1929 (SA).
The seventh trial – Exhibits P16 and P18
It was in this context that the seventh trial proceeded in 2021 before a judge of this Court sitting without a jury.
Exhibits D12 and D13 from the sixth trial were tendered by the prosecution at the seventh trial, and so too was a transcript of the applicant’s incomplete evidence from the sixth trial (P16 at the seventh trial and VDD8 before me).
In the lead up to the seventh trial, counsel then appearing for the prosecution, Ms Harper, wrote to senior counsel for the applicant and his instructing solicitor about the way in which she proposed to conduct the trial:
I write to advise that, as long as Judge Boylan orders that the complainant’s previously recorded evidence be played in this trial, I will not call any further witnesses like what occurred in the previous trial before Judge Cuthbertson. I am happy to agree the same facts that [Mr Wilson] did in the last trial but also propose that we agree the dates on which [AW] gave her evidence in chief and cross-examination that will be watched by His Honour.
I am not prepared to have the transcript of [MSP’s] evidence in chief provided to or read to His Honour. It is mainly self-serving and has not been tested by cross-examination.
Feel free to contact me on my mobile if you wish to discuss the above. My number is […. … …].
That is, in fact, how the prosecution case was conducted at the seventh trial, save that Ms Harper revisited her position as to the applicant’s evidence which, as I have said, was ultimately tendered as part of the prosecution case. There is no evidence before me about the circumstances in which, or why, Ms Harper revised her position as to the tender of the transcript.
In her final address, Ms Harper dealt with exhibits D12 and D13 on the premise that they established the complainant had lied to her mother about having sex with LN – a lie which the complainant denied telling – and offered submissions to mitigate the significance of the lie in the trial judge’s assessment of the complainant’s credibility and reliability. This drew an inquiry from the trial judge about exactly what was ‘proved’ in this respect:
I suspect that Mr Barklay will focus much of his submissions to your Honour about saying that your Honour can't believe [AW] and what she's saying about the offending because she told a lie to her mother, [DB], when she was a 16-year-old girl about having sex with her foster brother [LN].
Can I make this submission about that aspect of the defence case? 16-year-old [AW] could have had a whole number of reasons at that point in her life when we know that she had just quit school at Coomandook, she had just left the [P] house and she had gone to live with her mother, who she said she had hardly seen, on her evidence, up to Queensland, a woman who you know she had very little to do with as a child.
HIS HONOUR: Sorry to interrupt, but I probably have to hear from both of you on this at some stage - you may not want to address it immediately - precisely what is proved on this topic?
MS HARPER: Yes, in my submission Mr Barklay had [AW] say that she and [LN] never had sex. The document that your Honour has is a record from a Families SA record.
HIS HONOUR: That's the small type?
MS HARPER: Yes.
HIS HONOUR: I don't think I've been taken to that yet.
MS HARPER: It's D12.
HIS HONOUR: Yes, I have that.
MS HARPER: That should be read in conjunction with D13, which is statement of agreed facts in relation to Exhibit D12.
HIS HONOUR: Yes, I've read that.
MS HARPER: In my submission what those agreed facts and D12 does is it shows that [AW] wasn't truthful about when she said to her mother that she and [LN] had had sex, because she denied it in her evidence, and you have the agreed fact that if [DB] were called to give evidence she would say that [AW] had told her.
HIS HONOUR: I'm a bit uncomfortable about that. That may well be what she would have said, I assume that she's been spoken to and if she were here to give evidence that is what she would say, but -
MS HARPER: It's a lie about never having told her mother -
HIS HONOUR: Is it agreed between you that I must accept that [DB] was correct in the account that she gave of her conversations with her daughter [AW]?
MS HARPER: Your Honour doesn't have to accept that she was correct in that, and I see your Honour's point there.
HIS HONOUR: From somewhere in here I take it this is tendered as a business record?
MS HARPER: Yes.
HIS HONOUR: What's the effect of it? I'll hear Mr Barklay on it too. Is the director asking me to accept this as proved: that on a number of occasions [AW] told her mother, [DB], that she had had sex with [LN]?
MS HARPER: Yes. Staying on that topic though, it's my submission that there are many reasons why a 16-year-old [AW] -
HIS HONOUR: Yes, you go back to that but I wanted to clear up first exactly what the director is asking me to accept as proved by those agreed facts taken together with the Exhibit D12, is it?
MS HARPER: D12 and D13. Yes, that is the case. I can tell your Honour I've taken instructions on the matter, that is the position.
HIS HONOUR: That's cleared that up.
MS HARPER: On that topic then, as I was saying, there might well be many reasons why a 16-year-old [AW] said those things to her mother back then when, as we know, she had just left the [P’s] house, she had been kicked out of school and she went to live with her mother, who she really had no relationship with. Your Honour might even think it was a throwaway line that she said a few times to her mother, for whatever reason. She might have had many reasons to say that, but your Honour has heard that [AW] never did anything about the [LN] allegation. She didn't tell the authorities, she didn't tell the police.
HIS HONOUR: There's no suggestion that there has been proved that she told a lie about unwelcomed sex, is there?
MS HARPER: No, there's not, it's just that she told a lie about not having said something to her mother.
HIS HONOUR: Yes, I see, I understand that.
MS HARPER: It's my submission that really that doesn't affect her credibility in a great way at all. It's a very different thing saying something or being asked about what she said about something as a 16-year-old girl, which your Honour knows was never taken any further, to actually coming along in this trial, going to report it to the authorities and come along to give evidence-in-chief and to be cross-examined under oath in, firstly, her evidence-in-chief in August 2018, where she was cross-examined, she was then subjected to further cross-examination two years later, by Mr Barklay in August 2020. Coming along and giving evidence at two criminal trials, under oath, and having her account tested by two counsel, under cross-examination, is very different to forgetting that she's made a remark to her mother or lying about making or not saying anything about a remark that she's made to her estranged mother as a 16-year-old girl.
I urge your Honour to consider that when assessing [AW’s] credibility and, importantly, whether your Honour is satisfied about whether [AW] is telling the truth about what we're dealing with in this trial, which is whether or not [MSP] offended against her in the way that she says. In my submission your Honour should give very little weight to the fact that she said that she didn't tell her mother anything about having sex with [LN]. It's two very different things and it's not a lie in her evidence that should cause your Honour to think that she is not a credible witness in the sense of the evidence that she's given as a whole.
HIS HONOUR: Could she simply have forgotten it?
MS HARPER: She could have.
HIS HONOUR: Is there room for that or not?
MS HARPER: She was emphatic that she said 'No', though, it wasn't 'I don't remember'.
HIS HONOUR: So according to D12 she said it to her mother on three occasions?
MS HARPER: Yes.
HIS HONOUR: Once, most recently, when she was 16, again when she was 15 and the first time probably when she was 13.
MS HARPER: Yes.
HIS HONOUR: Thank you.
Any submissions made by Mr Barklay QC (as he then was) on this topic in his final address were not put before me on the application.
Following closing submissions in the seventh trial but before the trial judge delivered his verdict, a further affidavit was disclosed by the prosecution to those acting for the applicant.[9] The affidavit was sworn by the investigating police officer and deposed to a conversation the investigator had with DB at the request of the prosecutor prior to the commencement of the seventh trial. The affidavit, and the investigator’s notes of her conversation with DB, had not been disclosed to those acting for the applicant before the seventh trial commenced.[10]
[9] Affidavit of Patrick Deegan, [20]-[27].
[10] Affidavit of Patrick Deegan, [20]; T10.
The affidavit of the investigator indicates that she had been asked to put four questions to DB for comment. The four questions, and the answers provided to the investigator by DB, which were recorded in handwritten notes, were as follows (noting that I have merged the questions and answers to make it easier to follow):
At this time I asked her four (4) questions:
(1) Did [AW] ever tell you about having sex with [LN]?
Yes she did.
(2) When was that?
I think she told me when we were at the zoo
trying to remember to remember how old she was
[S] was there – pregnant
[T] was 3
1993
Adelaide Zoo(3) How many conversations did you have about this?
Almost everytime after we had access she would say in a wisper [sic] in my ear ‘I don’t like [LN]’, - ‘[LN] hurt me again’
What did he do?
“Can’t tell you
Its a secret”
1st time she told me, she said ‘winky/pinky’ put it in her
pants …, she didn’t like it.
bit young
when older ‘that [LN] has sex I [sic] me.
continued after he left home
take he [sic] aside & have sex with her(4) Did you ever have a conversation with Families SA about this?
Yes I told Welfare – Families SA
DCP
[MG]
Anytime my kids told me anything
I told Families SAI pause here to observe that it would seem from this discussion with DB having taken place before the seventh trial, that she was essentially ‘proofed’ on the topic of disclosures by AW. The information she provided was generally consistent with, albeit more expansive than, D12 and D13.
It appears that after the affidavit and notes were disclosed, the solicitor for the applicant made telephone contact with DB and obtained some further information from her. This information was then conveyed to Ms Harper who was asked to agree three facts. I set out the correspondence that passed between the parties which, as will be seen, indicates that the prosecution position initially was that no further facts would be agreed. That position ultimately changed:
From: Patrick Deegan
Sent: Sunday, 19 September 2021 12:15 PM
To: Harper, Emily
Cc: Heath Barklay
Subject: R v [MSP]Dear Ms Harper,
We refer to the above matter listed tomorrow morning for a Directions Hearing.
Our office has now spoken with [DB]. We understand if called to give evidence [DB] would give evidence to the effect (in addition to that which was already agreed) that:
· [AW] first told [DB] about [LN] abusing her when she was around 8 – 9 years of age.
· [AW] would tell [DB] this on each occasion she had access visits.
· The last time [AW] told [DB] about this was in 2008 (when [AW] was or around 22 years of age), which was the last occasion that they held a conversation and saw each other.
In those circumstances, we would seek the Director’s position to agreeing the above facts as opposed to having the need to list the matter for further evidence.
Would you please advise your position as to the same.
As to the hearing tomorrow, we would propose the same be adjourned for seven (7) days for the Director to consider the position.
Should you wish to discuss the above please do not hesitate to contact myself on […. … …]. Thank you.
Regards,
Patrick Deegan
Senior AssociateFrom: Harper, Emily
Sent: Tuesday, 21 September 2021 4:13 PM
To: Patrick Deegan
Cc: Heath Barklay
Subject: RE: R v [MSP]Dear Mr Deegan,
I refer to your email below regarding the matter of [MSP] and your proposal in relation to agreeing a number of facts about what evidence [DB] would give if she were called. I have taken instructions and the prosecution is not prepared to agree any of the matters that you have set out below.
As there is no agreement, can you please advise what your application is regarding this matter.
I will write to Judge Boylan this afternoon to advise him that I have now had the opportunity to take instructions on the matters that you raised and that we are still in discussions about the matter and what to do.
Kind regards,
Emily Harper | Prosecutor
From: Harper, Emily
Sent: Tuesday, 21 September 2021 6:00 PM
To: Patrick Deegan
Cc: Heath Barklay
Subject: RE: R v [MSP]Dear Mr Deegan,
Further to my email below, are you able to articulate what it is that you want to make of the proposed agreed facts? That would assist the prosecution in coming to a position in respect of what should occur next in relation to this matter.
Kind regards,
Emily Harper | Prosecutor
From: Patrick Deegan
Sent: Wednesday, 22 September 2021 3:22 PM
To: Harper, Emily
Cc: Heath Barklay
Subject: R v [MSP]Dear Ms Harper,
Further to our recent communications, I confirm I have recently spoken with [DB] via telephone. [DB] has advised if she were called to give evidence on the topic of [LN] she would say:
1. [AW] first told her about [LN] “touching her down there” when at the Adelaide Zoo whilst in company with [AW’s] older sister [S]. She ([AW]) said [LN] hurt her.
2. [AW] (on a later occasion) disclosed to [DB] that [LN] had sex with her.
3. [AW] would tell [DB] this regularly, on every visit she had at the time.
4. [AW] again told [DB] this [AW] had left the [P’s] care when she went to live with [DB]. (Reference to FAYS case notes).
5. [AW] last told [DB] that [LN] had sex with her in or around August 2008 whilst at the hospital.
6. [DB] specifically recall this event as she [DB] flew from Qld to South Australia to help [AW].
Regards,
Patrick Deegan
Senior Associate
From: Harper, Emily
Sent: Wednesday, 22 September 2021 5:06 PM
To: Patrick Deegan
Cc: Heath Barklay
Subject: RE: R v MSPDear Mr Deegan,
Thank you for your email.
I note that in a telephone conversation that I had with Mr Barklay last night, he understood and agreed with the prosecution’s position in respect of not agreeing the facts set out in your email to me on Sunday evening due to the way that they were framed. It would be of assistance to the prosecution to know what use you propose to make of the below facts. For example, are you wanting to agree facts that [AW] had told [DB] that she had been sexually abused by [LN] and she repeated that to [DB] on certain occasions, or are you wanting me to agree facts that [AW] told [DB] there was ‘sex’ between [LN] and herself and she repeated that to [DB] on certain occasions?
I think that this needs to be clarified before we ask the investigating officer to take a statement from [DB] about her recollections of [AW] telling her about [LN].
Kind regards,
Emily Harper | Prosecutor
From: Harper, Emily
Sent: Thursday, 23 September 2021 4:05 PM
To: Patrick Deegan
Cc: Heath Barklay
Subject: [DB] Affidavit
Attachments: [DB] – unsigned affidavit 23.9.21.docxDear Mr Deegan,
An affidavit has been taken by the investigating officer from [DB] this afternoon. I have attached a finalised but unsigned copy to this email. [DB] lives in Queensland and does not drive so it was not able to be signed this afternoon. I am hopeful that she will be able to sign the affidavit tomorrow and I will send a copy of the signed affidavit once I have received it.
Now that you have the affidavit, are you and Mr Barklay please able to indicate what parts of the affidavit you want agreed and for what purpose over email so that we can consider the matter before we are before His Honour again on Monday morning.
Kind regards,
Emily Harper | Prosecutor
The chain of correspondence demonstrates that the prosecution was initially reluctant to agree the facts foreshadowed by the applicant and, to this end, arrangements were made for a further affidavit to be taken from DB to explore the matters the subject of the correspondence. As Ms Harper’s final email suggested, a further affidavit sworn 27 September 2021 was in fact obtained from DB (VDD4). The content of this affidavit is, to my mind, of significant importance to the current application. The affidavit was obtained by the investigating officer and as will become apparent, it formed the basis of a further set of agreed facts (P18). In VDD4, DB deposed:
3.The first time [AW] told me about [LN] touching her was when she said he touches her with his winky or pinky and he hurts her and she pointed to her vagina. She spoke very quietly when she said this. This was when we were at the Adelaide Zoo, I remember [S] was there and she was pregnant. [T] was three so it was around 1993 and [AW] would have been 7 years old. I remember also it was in December and I had Christmas presents for all my children and also [To’s] birthday present as her birthday is in December.
4.Almost every access visit I had with [AW] which was once or twice a year until she was about 16 years old [AW] would follow me until she could get me on my own and she would whisper in my ear and say, [LN] hurts me, [LN] touches me. I would ask her where and she would say down there.
5.After the second time she told me she said ‘Don’t tell [J] mum’.
6.When [AW] was about 11 or 12 she told me that [LN] was having sex with her. I remember she spelt the word out. Rather than saying it she said S E X, she said it’s a secret.
7.[AW] did tell me again that [LN] was having sex with her it was when she came to stay with me in QUEENSLAND, [AW] was 16 years old. I don’t remember what the conversation was after this and I am not sure now if she was talking about it being current or in the past.
8.The last time [AW] spoke to me about having sex with [LN] was around August 2008, I think it was at Modbury Hospital. I had flown down from QUEENSLAND to SOUTH AUSTRALIA to help [AW] because she was depressed and very distressed.
Further correspondence passed between the parties in light of the affidavit. This correspondence led to additional agreed facts being drafted by the prosecutor[11] and re-drafted by those acting for the applicant.[12]
[11] VDD1, Affidavit of Patrick Deegan, PD11 (p 55).
[12] VDD1, Affidavit of Patrick Deegan, PD12 (p 56).
The matter was subsequently called on before the trial judge and further agreed facts tendered (P18). In their final form, the agreed facts, which were derived from paragraphs 6, 7 and 8 of the further affidavit VDD4, provided:
R v [P] – Agreed Facts
1. If called to give evidence, [DB] would say the following:
a. When [AW] was about 11 or 12 [AW] told [DB] that [LN] was having sex with her. [DB] recalls this because she remembers [AW] spelling out that word rather than saying it. [AW] said S E X, [AW] told her it was a secret.
b. [AW] told [DB] again about [LN] having sex with her. This was when [AW] went to live with [DB] in Queensland. [AW] was about 16 years old at the time.
c. The last time [AW] told [DB] about her having sex with [LN] was in or around August 2008 at the Modbury Hospital. [AW] was 22 years old at the time.
Counsel for the prosecution made further submissions about the interrelationship between P18 and exhibits D12 and D13 and, after reminding the trial judge about the passage of the complainant’s cross-examination in the sixth trial which I have earlier set out, the following exchange took place:
MS HARPER: And it goes onto p.103. The cross-examination was about Mr Barklay asking [AW] whether or not she recalled or whether she did tell her mother, [DB], about having sex with [LN] on a number of occasions, and your Honour will recall that [AW] said that she never did.
HIS HONOUR: Never said that?
MS HARPER: Never said that. And further, she never - it would be a lie if she had told her mother that her and [LN] had had sex.
HIS HONOUR: She denied that she'd had sex with [LN]?
MS HARPER: That's right, and she also denied ever saying to her mother about that. The agreed facts that are before your Honour as D12, which is a continuation sheet that was tendered as a business record from Families SA, it was a telephone note.
HIS HONOUR: I remember that.
MS HARPER: And also D13, there was an agreed fact about if [DB] had been called to give evidence, what she would have said, and really P18 is some further disclosure came to light where there was a little bit more detail about what it was that [AW] had said.
HIS HONOUR: So the prosecution does not dispute that the complainant said these things to her mother?
MS HARPER: That's right. And it's solely a matter that your Honour needs to consider in respect of [AW’s] credibility, and whether that affects her credibility about what she says in respect of what [MSP] did to her.
I really maintain my submission that I made to your Honour about this is things said by [AW] as a 16-year-old girl, and then again as a 22-year-old young woman off the cuff remarks to her mother who, on the face of it, they seem to have little contact with one another. And it's a very different thing making these remarks to her mother at that age compared to coming along to court, seeing these maters through, going to the police and giving evidence on a number of occasions. Your Honour has those different dates of the different trials in front of you, and it's something that shouldn't impact, in my submission, your Honour's finding [AW] as being a credible witness in respect to what she talks about [MSP] doing to her at the property at Coomandook.
Unless I can assist your Honour any further, that's really all I propose to say.
HIS HONOUR: No, I understand your position.
The applicant’s solicitor also made some supplementary submissions:
The Court can be satisfied that on multiple occasions, over a period of at least a decade, that is commencing from the ages of 11 or 12, where [AW] prior to moving into the [P’s] residence, up until at least the age of 22 years, [AW] made false allegations about having sex with a former foster brother.
The prosecution case in this matter relies entirely on the credibility of [AW]; she is the sole [Crown] witness. The established evidence before the court is that she has lied over the space of a decade about having sex with that former foster brother. The established evidence is that the lie continued into adulthood, and it's not a could have been that she forgot about this allegation and that she was emphatic in her denial, and that can be found at transcript P15, transcript 82 line 36. We say that the evidence on this matter is highly relevant when assessing the credibility of [AW]. It is demonstrative of a disposition to concoct the allegations of a sexual nature against a former foster brother.
The trial judge delivered his verdicts two days later, finding the applicant guilty on all counts.
The position adopted by the prosecution at the sixth and seventh trials
It can be seen from the above summary that, at the sixth and seventh trials of the charges, the prosecution adopted the position that D12 was admissible and, in combination with D13, established that the complainant had told her mother that she had sex with LN – a statement the complainant had unambiguously denied making when cross-examined during the sixth trial. At the seventh trial, D12 and D13 were supplemented by the agreed facts, P18, which were drawn from further information provided by DB and which confirmed that on a number of occasions, the complainant had told her mother that LN was having sex with her.[13] The sequence of events surrounding the generation of P18 tend to suggest that the affidavit VDD4 was obtained from DB as part of the prosecution’s ‘due diligence’ in relation to the proposed agreed facts being advocated by the applicant. The investigator having had an opportunity to speak with and obtain a further affidavit from DB, the prosecution agreed further facts drawn directly from VDD4. It is implicit in the formulation of agreed facts based on VDD4 that the prosecution accepted that what DB said about the disclosures was credible and reliable.
[13] Despite the chapeau to the agreed facts it has not been suggested that their intended operation was limited to ‘this is what DP would say’ as opposed to those facts being established. Any such suggestion would be inconsistent with the submission made by Ms Harper.
The position adopted by the prosecutors who appeared on the instructions of the Director of Public Prosecutions at the sixth and seventh trials appears to have been considered and, as Ms Harper said to the trial judge in the seventh trial, she had taken specific instructions that the prosecution’s position was that exhibits D12 and D13 proved that the complainant had told her mother on a number of occasions that she had sex with LN. When asked by Judge Boylan following the tender of P18 whether the prosecution disputed that the complainant made the comments to her mother, Ms Harper confirmed there was no dispute. It is further apparent that considerable care and attention went into the formulation of the agreed facts that became P18.
No evidence has been adduced by the prosecution on this application to suggest that the agreement which Mr Wilson made with senior counsel for the applicant at the sixth trial was unauthorised or without instructions. Rather, the prosecution’s position on this application is, as I have said, that I should infer that the prosecutors were acting on instructions.[14]
[14] Prosecution’s Written Submissions, [16(a)].
Further to this, on the evidence before me, the conduct of the prosecutors who appeared at the sixth and seventh trials cannot be described in any way as hasty or ill-considered. The facts were agreed based on affidavits sworn by DB and which had been obtained by the investigating police officer. Importantly, there is nothing to suggest that at the time the further affidavit VDD4 was sworn by DB, she was in anyway uncertain about the fact or content of the conversations she had with her daughter that were the subject of the agreement and the prosecution’s willingness to agree facts based on that affidavit indicate that it accepted her assertions of fact as credible and reliable. Self-evidently, were that not the case, the facts would not have been agreed.
The appeal against convictions
Following the delivery of the trial judge’s verdicts, the applicant appealed his convictions on numerous grounds, including what were said to be inadequacies in the trial judge’s treatment of the complainant’s lies about sex with LN: Park (a pseudonym) v The King [2022] SASCA 132.
In allowing the appeal, the Court of Appeal traversed D12, D13 and P18, the position of the parties and the findings of the trial judge.
The Court observed at [31]-[33]:
31.As can be seen, in her evidence the complainant denied telling her mother that she had sex with LN in direct contrast with the statement of agreed facts. In those circumstances, the prosecution accepted that the complainant had been untruthful, that is, deliberately lied, when she told her biological mother that she had sex with LN.
32.The appellant submitted that the agreed facts demonstrated that the complainant had told repeated lies about having sex with an older foster brother, the same allegation as in this matter, and therefore she had a ‘disposition’ to tell les in a sexual context. The appellant relied upon the fact that she told the same lie on four separate occasions, the first occurring in 1999 and the last in or around August 2008.
33.The trial Judge was left with little alternative, given the agreed facts and the prosecution submission, but to accept that the complainant, despite her denials at trial, had told lies to her mother about having sex with LN.
It is not necessary for present purposes to explore in further detail the Court of Appeal’s analysis of the trial judge’s reasons for verdict. It is sufficient to observe that the Court concluded that the trial judge had failed to adequately explain how he dealt with the lies; why the lies did not impact on the complainant’s credibility and reliability such as to cause him to doubt her evidence; and how he was able to conclude that the complainant’s denials in court of telling her mother about having sex with LN were a product of forgetfulness and not a deliberate concealment of the truth. The applicant also succeeded in establishing that the trial judge had wrongly reasoned that the complainant had been consistent in her out of court statements about her allegations given the absence of any suggestion during cross examination of inconsistencies.
The Court of Appeal rejected the applicant’s contention that the verdicts were unreasonable or unsupported by the evidence, and dismissed the applicant’s invitation not to remit the matter for trial:
100.The appellant urged this Court, given the lengthy history of the matter, to consider not remitting the matter for a further trial if error was established. Practically, that is asking this Court to stay the prosecution. While the history is indeed unfortunate, the question of whether the case should be prosecuted again is a matter for the Director of Public Prosecutions to consider.
Of course, at that time, it was not known that the prosecution would subsequently seek to step away from the previously agreed position, on which the judge at the seventh trial was asked to decide the applicant’s guilt or innocence.
The lead up to the eighth trial
The eighth trial was due to commence before me on 6 August 2024.
On 31 July 2024, counsel now appearing for the Director of Public Prosecutions, Ms Dunlop SC, advised Mr Henchliffe KC that she had been briefed to conduct the trial. Ms Dunlop advised that she intended to make an application for the previously recorded evidence of the complainant from the sixth trial to be played and inquired whether there would be any objection to that application.
Mr Henchliffe wrote to Ms Dunlop addressing her inquiries and indicating that he had been proceeding on the assumption that the trial would be conducted in the same way as the seventh trial and, in particular, that the same exhibits would be tendered and facts agreed.[15]
[15] VDD1, Affidavit of Patrick Deegan, [32]-[33], PD15, pp 66-68.
On 2 August 2024, Ms Dunlop advised the applicant’s lawyers that she proposed to call DB, signalling her intention not to adhere to the agreed position. It is a little unclear but it may be that the decision not to agree to the tender of D12, D13 and P18 was not expressly communicated until 4 August 2024.[16]
[16] VDD1, Affidavit of Patrick Deegan, [34].
On 5 August 2024, DB provided a further affidavit to the investigating officer over telephone. In her further affidavit (VDP5) which I have set out in more detail later in these reasons,[17] DB deposed that she could remember AW telling her when aged 7 or 8 that LN hurt her and touched her ‘where her bathers go’. As to the disclosure in Queensland when AW was around 16, DB said AW mentioned LN and the word ‘sex’ but did not elaborate. She said she could not now remember what else was said. As to the Modbury Hospital disclosure, DB deposed that she was not 100% sure if AW spoke about LN on that occasion, but she may have.
[17] See [173].
Although no evidence of any response to Mr Henchliffe’s email was put before me on the application, it is common ground that Ms Dunlop is not prepared to agree to the tender of D12 or to agree the facts the subject of D13 and P18 and that decision was communicated by 4 August 2024 at the latest. Ms Dunlop proposes to call DB to give evidence and, potentially, to invite the trier of fact to approach her evidence with caution. As can be seen from the matters I have set out to this point, this proposed position is inconsistent with the way in which the Director invited the trial judge to proceed at the seventh trial, and inconsistent with the conduct of the prosecution case at the sixth trial up until the point of the mistrial.
Accordingly, the questions to be resolved on this application are whether the prosecution’s change in position with respect to D12, D13, P18 and, in contrast to the position taken at the seventh trial, the potential for a negative submission to be made with respect to the reliability of DB’s evidence about the conversations, is an abuse of process in that it will result in a trial that is unfair or unjustifiably oppressive to the applicant or would bring the administration of justice into disrepute, so as to require a conditional stay of the proceedings. Those questions must be addressed in the context of the further affidavit from DB – VDP5 – which, although not recanting anything she has previously deposed to, suggests that her memory of the disclosures made by AW deteriorated significantly between 2021 (when VDD4 was sworn) and 2024 (when VDP5 was sworn).
The applicant advances a further contention in support of his application based on the intimated refusal of the prosecution to tender the transcript of the applicant’s incomplete evidence in chief at the sixth trial. It is convenient to deal first with this aspect of the application.
The accused’s incomplete evidence
The applicant submits that the prosecution are obliged to tender the record of his incomplete evidence for two reasons. First, he submits that his evidence constitutes a ‘mixed’ statement such as to attract the operation of the Nguyen principles (Nguyen v The Queen (2020) 269 CLR 299), requiring the prosecution to tender the transcript unless there is good reason not to.
Secondly, the applicant argues that even if his evidence cannot be described as a ‘mixed’ statement, the prosecution is nonetheless obliged to tender the record because they had done so at the seventh trial and the presentation of the applicant’s evidence is necessary to comply with its prosecutorial duty.
The applicant also points to the prosecutor’s indication that she will not tender the transcript as evidence supporting his primary contention that the withdrawal from the agreements is the product of an improper tactical decision made by the prosecution to further its prospects of conviction.
The decision in Nguyen (2020) 269 CLR 299
In Nguyen, Kiefel CJ, Gageler, Bell, Keane and Gordon JJ confirmed that a fundamental feature of our system of accusatorial and adversarial criminal justice is that whilst it is for the prosecution to determine the witnesses to be called and the evidence to be presented as part of a prosecution case, that determination must be made consistently with the obligation of the prosecution to fully and fairly put its case before the trier of fact.[18] The majority held that the discharge of the prosecutorial responsibility requires the prosecution to adduce all cogent, available and admissible evidence, irrespective of whether it assists the prosecution case, unless there is good reason not to do so.[19]
[18] Nguyen v The Queen (2020) 269 CLR 299, [26].
[19] Nguyen v The Queen (2020) 269 CLR 299, [36], [41].
Whilst acknowledging that the exercise of the prosecutorial ‘discretion’ as to which witnesses to call and which evidence to present is not reviewable, the majority observed that if the exercise of the discretion miscarries, the fairness of an accused’s trial may be compromised. Where a trial judge foresees an appreciable risk of a miscarriage in the event that a particular witness is not called or certain evidence is not to be presented as part of the prosecution case, it will be necessary to consider what, if any, remedy is required to avoid that risk materialising.[20]
[20] Nguyen v The Queen (2020) 269 CLR 299, [66] (Edelman J).
Nguyen itself involved a refusal by the prosecution to tender the accused’s record of interview with police. The accused was charged with two offences of violence arising out of an altercation at a gathering during which he was said to have thrown bottles at the two alleged victims. In the course of his interview with police, the accused admitted throwing the bottles but claimed to have been acting in self-defence. Accordingly, the accused’s interview with police constituted a ‘mixed’ statement and was admissible both for and against the accused. The jury at the accused’s first trial were unable to reach a verdict and at the commencement of the second trial, the prosecutor indicated that he did not propose to tender the interview on the basis that it would not assist the prosecution case and that the accused could give evidence of the matters about which he spoke in his interview if he chose to. That is to say, the decision at the accused’s retrial not to tender the interview was made for tactical reasons to enhance the prospects of a conviction. Counsel for the accused sought a stay of the proceedings, which led the trial judge to refer two questions to the Court of Appeal: was the interview admissible in the Crown case and, if so, was the Crown obliged to tender the interview.
The Court of Appeal answered these questions ‘yes’ and ‘no’ respectively. On appeal to the High Court, it was held that the prosecution was obliged to tender the accused’s interview to discharge its responsibility to fully and fairly present the prosecution case.
The plurality reasoned that as the interview constituted an admissible, mixed statement and there was no good reason for the prosecution not to tender it, the prosecutor’s intention to refrain from doing so for tactical reasons contravened the ‘…prosecutorial obligation respecting the presentation of the Crown case and disadvantaged the [accused].’[21] By analogy with the principles developed in relation to the prosecution’s responsibility to call all material witnesses as a subset of the general duty of the prosecution to present its case conformably with the dictates of fairness, the plurality confirmed that the prosecution were obliged to present all cogent, available and admissible evidence in furtherance of its function of fully and fairly presenting the prosecution case, unless there was good reason not to.[22]
[21] Nguyen v The Queen (2020) 269 CLR 299, [46].
[22] Nguyen v The Queen (2020) 269 CLR 299, [36]-[41].
This last component of the scope of the duty, as formulated by the plurality, is important because it recognises that the duty is neither absolute nor unqualified:
There may be circumstances where it would be unfair to an accused to tender a record of interview, for example where the accused has refused to comment. In such a circumstance the omission of that evidence is justified. But where an accused provides both inculpatory and exculpatory statements to investigating police officers, it is to be expected that the prosecutor will tender that evidence in the Crown case, unless there is good reason not to do so, if the prosecutorial duty is to be met. [23] (emphasis added)
[23] Nguyen v The Queen (2020) 269 CLR 299, [41].
What may amount to ‘good reason’ not to present evidence will obviously require a fact specific examination. However, the joint reasons confirm that a decision made by a prosecutor to refrain from calling a witness or presenting evidence in order to preserve or enhance the prospects of conviction is a necessarily flawed one:[24]
A prosecutor acting in accordance with the responsibilities of their office is not to be expected to be detached or disinterested in the trial process. A prosecutor is to be expected to act to high professional standards and therefore to be concerned about the presentation of evidence to the jury. It is to be expected that some forensic decisions may need to be made. It is not to be expected that they will be tactical decisions which advance the Crown case and disadvantage the accused. In Ziems, Fullagar J observed that in that case the object of not calling a vital witness could only have been to deny the other party the ability to cross-examine him. Whilst the creation of a tactical advantage might be permissible in civil cases, in criminal cases it may not accord with traditional notions of a prosecutor's function, his Honour said. In Whitehorn, Deane J said that the observance of traditional considerations of fairness requires that prosecuting counsel refrain from deciding whether to call a material witness by reference to tactical considerations. It will be obvious that a decision by a prosecutor to refuse to tender a mixed statement so that the accused is forced to give evidence falls into this category.
[24] Nguyen v The Queen (2020) 269 CLR 299, [45].
Although other members of the Court were unwilling to express the duty of the prosecution in the same terms,[25] all members of the Court accepted that the responsibility of the prosecution to conduct its case fairly and fully would be contravened by the prosecutor’s decision not to tender the mixed statement in the circumstances and for the reason advanced.
[25] Nguyen v The Queen (2020) 269 CLR 299, [48]-[50] (Nettle J); [62]-[67] (Edelman J).
The parties did not address at length whether the discussion of principle in Nguyen, which concerned mixed statements made by an accused in the course of a police interrogation, applies equally to evidence given on oath by an accused at a previous trial but there is no reason to think it would not. Indeed, as the plurality said at [37] and [39], rejecting the submission of the Crown that previous decisions of the High Court concerning the prosecution’s responsibilities were limited to the approach to be taken to the assessment of a failure to call a material witness:
The respondent to this appeal sought to distinguish these and other cases on the basis that they concerned decisions whether to call material witnesses, the implication being that mixed inculpatory and exculpatory statements made by an accused when interviewed by police about an offence are not subject to the same or similar considerations. The simple answer to that submission is that what was said in cases such as Richardson and Whitehorn about the responsibilities of a prosecutor apply by analogy. They apply to the tender of all evidence which may properly and fairly inform the jury about the guilt or otherwise of the accused. As Dawson J said in Whitehorn, the prosecutorial obligation to call all witnesses is but an aspect of "the general obligation which is imposed upon a Crown Prosecutor to act fairly in the discharge of the function which he performs in a criminal trial. That function is ultimately to assist in the attainment of justice between the Crown and the accused."
…
What was said in Soma should be understood not just as a caution to prosecutors about being selective but rather as a reminder about the prosecutorial obligation to present all available, cogent and admissible evidence. Cases involving the omission of a vital witness may provide somewhat more stark examples of a failure properly to exercise that discretion than a mixed statement given by an accused in a police interview, but the latter may have just as important an impact on the outcome of the trial and the need for a new one. It was considerations of what is necessary for the proper presentation of the prosecution case which led Hayne J to say in Mahmood v Western Australia that:
"If there is admissible evidence available to the prosecution of out‑of‑court statements of the accused that contain both inculpating and exculpating material, fair presentation of the prosecution case will ordinarily require that the prosecution lead all that evidence."
The effect of the joint reasons in Nguyen may be said to be that if a record of the incomplete evidence given by the applicant at the sixth trial is admissible in the prosecution case, the obligation to present all cogent, admissible and available evidence would require the tender of the applicant’s evidence unless there was good reason not to do so.
As the plurality framed the extent of the prosecution’s duty by reference to the availability of admissible evidence, it is necessary to address whether the record of evidence given by the applicant at the sixth trial would be admissible at the instance of the prosecution. If the evidence is not admissible on the prosecution case, there could not, in my view, be any obligation to tender it.
The admissibility of mixed and self-serving statements
It is well-established that a mixed statement made by an accused to police during the course of an interview or interrogation, for example, is admissible at the instance of the prosecution. The admissibility of such a statement essentially derives from those features of the accused’s comments that can be described as incriminatory and hence against interest, justifying the reception of the out of court statement pursuant to the exception to the hearsay rule for ‘admissions’.[26]
[26] R v Quist [2017] SASCFC 37, [164] (Blue J); R v Golubovic [2016] SASCFC 144, [117] (Blue J).
However, in recognition of the unfairness that can arise where the inculpatory elements of such a statement are admitted in isolation, where the prosecution wish to rely on an admission made within a mixed statement, it may not be selective as to which portions of the statement go before the trier of fact:[27] the whole of the accused’s statement must be put in and can be used both for and against the accused. The self-serving or exculpatory answers given by an accused in a mixed statement can be used for a testimonial purpose.[28]
[27] Mahmood v Western Australia (2008) 232 CLR 397, [39]; Nguyen v The Queen (2020) 269 CLR 299, [27]; Barry v Police [2009] SASC 295, [67].
[28] Spence v Demasi (1988) 48 SASR 536, 541; Nguyen v The Queen (2020) 269 CLR 299, [23]-[24].
It follows from the approach taken in Nguyen that, ordinarily, the proper discharge of the prosecutorial duty to present its case fully and fairly, will require the tender of an accused’s mixed statement unless there is good reason not to do so.
Where what is in issue is an entirely self-serving statement of an accused, the position is less clear. In R v H, ML [2006] SASC 240 at [25]-[27], Vanstone J said:
I turn to the question of principle. Statements made out of court, including by the accused person, are, prima facie, hearsay. However, in a criminal trial the prosecution can tender a statement of a defendant where it is said to contain admissions or other incriminating statements. Where such a statement contains exculpatory material as well – referred to as a “mixed statement” – the prosecution is obliged to tender the whole statement. The material goes in as an exception to the hearsay rule. The jury is entitled to treat the various parts of it as being of differing weight: Jack v Smail [1905] HCA 25; (1905) 2 CLR 684, 695; Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573; Spence v Demasi (1988) 48 SASR 536, 540; R v Collie [2005] SASC 148; (2005) 91 SASR 339; Duncan (1981) 73 Cr App R 359. The exculpatory parts go in not merely to provide a context to the admissions, but as some evidence of the facts stated: Duncan, Spence v Demasi at 541.
However, if the statement contains only self-serving material then it is not admissible at the instance of the accused: Callaghan v The Queen [1993] QCA 419; [1994] 2 Qd R 300.
It is probably admissible if tendered by the prosecution. Indeed in this jurisdiction it has been for some years customary to tender as part of the prosecution case any response made by the accused when first “taxed with the allegations” by police.[29]
[29] The suggestion that, as a matter of practice, prosecutors would tender any response made by an accused when ‘first taxed with the allegations by police’ was disputed by the prosecution in R v Helps (2016) 126 SASR 486 at [25]. Kelly J there remarked that the ‘practice referred to by Vanstone J may well have changed over recent decades’.
That is not this case. The parties agreed that it was not necessary for all the evidence available to the prosecution to be adduced in the usual way. Rather, in the exercise of their independent forensic judgment, the parties determined that the evidence of DB could be appropriately put before the triers of fact in a particular form. The conduct of the parties carried with it an acknowledgement that this course was appropriate and, in the case of the prosecution, compatible with the discharge of its responsibilities. The applicant has been able to demonstrate that the loss of the opportunity to adduce evidence from DB in the past, which is a direct result of the agreements previously made and adhered to by the prosecution, will seriously prejudice the conduct of his defence because of the change in DB’s position as to the disclosures.
In considering the nature and extent of the unfairness and oppression of which the applicant complains – and hence whether this is a case that truly calls for a remedy as drastic as a stay – it is necessary to bring to account that the disclosures which the prosecution previously agreed were made by the complainant are highly material to the assessment of the complainant’s credibility and hence the proper conduct of the defence case. It is, in my view, unjustifiably oppressive for the prosecution to now seek to put in issue whether the complainant made the statements attributed to her by her mother, having agreed that they were made and that a judge of this Court should consider whether the prosecution had proved the applicant’s guilt on that basis.
The applicant has demonstrated that, as a result of the abandonment of the agreements, there is more than a mere risk that he will not be able to establish that AW, on a number of occasions, told her mother lies about sexual activity with LN. The unfairness and oppressiveness of which the applicant complains is not just a consequence of the forensic exercise that a trial involves. It is a consequence of the prosecution departing from a position it has twice adopted and which involved unqualified acceptance that the complainant had made the disclosures and that the disclosures were untruthful: that had to follow because the complainant had denied in her sworn evidence any sexual activity with LN and accepted that any statement to that effect to her mother was untrue.
In the most unusual circumstances of this case, for the prosecution to now seek to resile from those agreements and adduce evidence from DB in circumstances where it is likely she will not give evidence consistently with those agreements and / or to challenge her evidence, is also apt to give rise to a risk of a miscarriage of justice. The risk of a miscarriage in the absence of the agreements being maintained emanates from the fact that, as things currently stand, the trier of fact at the eighth trial will be invited to determine the applicant’s guilt or innocence on a basis other than the agreed position that the complainant had made the disclosures to DB. That would necessarily represent a distortion of the evidentiary and factual matrix on which the prosecution previously put its case to this Court. The prosecution of these charges since 2020 and 2021 has proceeded on the basis that DB’s account of disclosures made by AW was credible and reliable. The applicant has conducted his defence accordingly. A trial judge was invited to accept as established fact that AW made the disclosures. Findings to that effect were subsequently made.
An independent forensic justification for the change in position
Insofar as the prosecution argued that VDP5 provides an independent forensic justification for withdrawing from the agreements, that submission, in the peculiar circumstances of this case, must be rejected.
By way of a preliminary observation, the submission is unpersuasive given VDP5 formed no part of the decision to renege from the agreements for reasons I have already set out: the applicant’s lawyers were advised on 2 or 4 August 2024 that the facts would not be agreed but DB did not provide her affidavit VDP5 to Detective Johnson until 5 August 2024. That means that, at the time the prosecution announced its intention to call DB, it must have been proceeding on the basis that (1) DB was a witness of truth – were it otherwise, she would not be called as part of the prosecution case; (2) DB would give evidence consistent with VDD4 and, therefore, the most important of the agreed facts (P18). The chronology of the decision-making process does, to my mind at least, make the determination not to adhere to the agreements all the more curious, although calling DB would obviously present an opportunity to address the reliability of her evidence.
It is true that DB’s position in respect of the disclosures has now changed. However, it is important that in VDP5, DB does not recant her earlier affidavits or suggest in any way that they did not accurately represent the state of her memory at the time they were sworn. This is not a case where a witness is now acknowledging that a previous version of events given by them was wrong or false.
The situation would, to my mind, be very different if DB no longer maintained the correctness of her earlier affidavits. In those circumstances, it could readily be said that it would be inappropriate for the prosecution to agree facts based on the account of a witness who now acknowledges what they previously said to have been wrong, false or contrived.[89] There is no evidence before me to this effect. Rather, the change in this case seems to be nothing more than a consequence of the passage of time. It cannot be said that the agreed facts were built upon a legal or factual misconception about the import of DB’s evidence
[89] LJW v The State of Western Australia [No 2] [2007] WASCA 275, [15]-[17].
Having had the opportunity to call DB at earlier trials, the prosecution considered it unnecessary to do so because it obviously took the view that her evidence was credible and reliable and could be appropriately agreed. The forensic decisions made by the prosecution have had the consequence that the applicant has now lost the opportunity to secure oral evidence from DB about the disclosures when the facts were no doubt fresher in her mind. There is no question that, on the face of the materials before me, the applicant will be in a position of considerable forensic disadvantage if the facts are not again agreed.
In circumstances where the accuracy and truthfulness of the witness’ memory had not previously been doubted by the prosecution; had been reduced to writing in affidavits obtained by investigating police; and used as the basis to agree facts upon which the Court was invited to adjudicate the applicant’s guilt or innocence, the change in position by DB because of the effluxion of time does not contraindicate the appropriateness of adhering to the agreed position. If anything, it reinforces why there should be adherence to the agreements. The authorities to which I will refer when considering whether a model litigant reneging on agreements or undertakings it has made in the context of criminal litigation is apt to bring the administration of justice into disrepute reinforce the public interest in the prosecution adhering to the agreements it made.
Given what was accepted in the formulation of agreed facts based on DB’s previous affidavits, the change in her memory does not supply a principled basis upon which the applicant should now be made to bear the forensic disadvantage that comes from the passage of time and the withdrawal from the agreements, particularly having regard to the unfortunate chronology of these proceedings.
It is unfairly and unjustifiably oppressive for the applicant to now be put in the position of having to establish facts which the prosecution has twice agreed were established.
Does resiling from the agreements bring the administration of justice into disrepute
I would also conclude that to allow the proceedings to continue in circumstances where the prosecution have reneged on the agreements it has previously made and invited this Court to act upon, would, in the most unusual circumstances of this case, bring the administration of justice into disrepute.
I would reach that conclusion for a number of reasons: one, no explanation, let alone a satisfactory explanation, has been put before me to justify the departure by a model litigant from proper and authorised agreements made by its officers in the conduct of this case. There is a persuasive public interest in prosecuting and investigative authorities being held to the representations, bargains or agreements it makes in the conduct of serious criminal litigation, other than where there is good reason not to do so.
Secondly, there is a degree to which the decision to abandon the agreements, call DB in lieu and criticise her evidence involves controverting the basis upon which the prosecution previously invited this Court to make a determination of the applicant’s guilt or innocence. Whilst the principles that inform the concept of incontrovertibility may not have direct application in the circumstances of this case, they serve as a useful prism through which to examine the appropriateness of the prosecution’s decision.
The public interest in prosecuting authorities adhering to agreements
The passage from La Rocca I set out earlier establishes that the administration of justice may be brought into disrepute in any number of ways. The conduct of parties may involve a misuse or manipulation of a court’s procedures such that to allow proceedings to continue would bring the administration of justice into disrepute. Alternatively, a feature of the litigation might tend to erode public confidence in the justice system or compromise the institutional integrity of a court and its responsibility to dispense justice impartially and independently. The administration of justice may be brought into disrepute by proceedings that subvert the rule of law or basic tenets of our system of adversarial and accusatorial criminal justice, or where a miscarriage of justice would likely result from the continuation of the proceedings. Put another way, broader considerations relating to the importance of justice being done and being seen to be done, may inform whether criminal proceedings are an abuse of process.
In R v Mohi (2000) 78 SASR 55, Martin J collected a number of authorities that emphasise the public interest in holding investigating and prosecuting authorities to agreements, undertakings or representations they make, commencing with Chu Piu-wing v Attorney-General [1984] HKLR 411 at 417-418, where the Court of Appeal of Hong Kong observed:
We think that there is a clear public interest to be observed in holding officials of the State to promises made by them in full understanding of what is entailed by the bargain.
Whilst those remarks were made in the very different context of the setting aside of a subpoena served on a witness in circumstances where officers of the Independent Commission Against Corruption had previously enlisted the assistance of the witness on the basis of an undertaking that they would not be required to give evidence, they reflect the strength of the public interest in adherence by the executive to agreements it makes.
In R v Betesh (1975) 30 CCC (2d) 233, the Canadian Federal Attorney-General gave an undertaking to settle a strike by postal workers that workers would not be prosecuted for any criminal offences they had committed during the strike. A postal worker was subsequently charged with assaulting a security guard hired to protect post office property during the strike. The worker applied for a stay. Although questioning the ‘wisdom of the undertaking’, the prosecution of the postal worker was stayed. Graburn J said at 251 and 252:
The abuse [of the process of the Court] lies in the Crown reneging on an agreement made and presented to a court. To renege on such an agreement constitutes an abuse of process of the court. The Crown is expected to honour the agreements it has made in relation to prosecutions.
To this I would add that the Crown is expected to honour such agreements whether presented to the court or otherwise.
…
Nevertheless, it remains my view that the Courts ought not to countenance a breach of an agreement by the Crown…
One final word: it may be said that my judgement today deprives a citizen of access to the Courts for redress of a wrong allegedly done to him. Such an assertion is untenable on two grounds. This is a criminal prosecution. Hence it is not the citizen, but the State which has been denied access to the Court. Nor is it the Court which has denied access to the State in that Court. The State has itself denied itself access to the Court by virtue of the agreement…
…
The Crown is bound in my view by its undertaking…it constitutes an abuse of process of this Court for the Crown to violate and breach its undertaking.
R v Crneck (1980) 116 DLR (3d) 675 was a case of manslaughter involving three accused. Prior to being charged, one of the accused, B, provided a statement to the police on the basis of an agreement with then Crown counsel that the statement would not be used against her and, if consistent with known facts, would see her called as a Crown witness instead of being charged and tried with her co-accused. After receiving B’s statements, Crown counsel, in consultation with investigators, determined to proceed only against one of the accused, C, and to call B to give evidence at trial. The effect of this decision was that both B and the third accused, S, were not to be tried. When Crown counsel’s undertaking was conveyed to B, she agreed to give evidence at C’s trial. S was also informed that the Crown would not be proceeding against him.
Upon new Crown counsel taking over conduct of the matter, it was determined that it was contrary to the interests of justice not to proceed against B and S, who were informed that the Crown would not honour the undertaking with respect to B and the decision made not to prosecute S. Both B and S sought a stay of the proceedings. B’s application was upheld.
In dismissing S’ application, Krever J observed (at 680) that the decision not to prosecute was essentially a unilateral decision made by the prosecuting authority: it ‘was not the subject of an agreement not to continue the prosecution, and…there was no consideration from [S] for the unilateral decision’.
As to B’s application, Krever J commented that there was considerable merit in the contention that ‘For the Crown to have reneged on an agreement to extend immunity from prosecution to an accused person in return for co-operation from that person, which is in fact given, undermines the administration of justice and brings the entire system of justice into disrepute’. The application was ultimately allowed however for the following reason (at 686):
If the Crown is permitted to withdraw from the agreement to discontinue the proceedings against [B] after she has fulfilled her part of the bargain, the Crown, in my opinion, will have caused serious prejudice to her in her defence on this charge. It is important to keep in mind that she is jointly indicted with [C], who is not a party to the agreement and cannot, therefore, be affected or prejudiced by it. If [B] were to take the witness-box in her own defence, as, of course, she has a perfect right to do, at the trial, and were to put the blame for the deed on [C], [C’s] counsel would be entitled to cross-examine [B] on her credibility. He would be entitled, in the course of so doing, to refer to the agreement…and to suggest it was an attempt to obtain immunity from prosecution and thus avoid conviction by blaming [C]. The jury would thus learn of the agreement, and seeing [B] in the prisoners’ box, might possibly draw an inference that for the Crown to have reneged on the agreements points to her guilt. If that can be overcome by a proper charge, which I doubt, the attack by [C] on [B’s] credibility by reference to the agreement, which as I have indicated, counsel for [C] would be entitled to make, could not. [B] might well thus be deterred from taking the witness-box in her own defence and be deprived of, or suffer a diminution in, a real opportunity of making full answer and defence.
I conclude in the circumstances of this case that, since she is jointly charged with [C] who cannot be affected by the agreement to which she was not a party, [B] would suffer oppression or serious prejudice within the meaning of the words in the doctrine of abuse of process. The cumulative effect of this consideration and the principle enunciated by the authorities that the Crown must be expected to carry out its agreement is enough, in my view, to bring this case within the category of ‘cases of the most exceptional circumstances’…
Returning to R v Mohi (2000) 78 SASR 55, Martin J stayed the prosecution of an accused charged with assisting an offender. The accused was present when two others committed murder but for 14 months following the death of the deceased, he was treated by investigators as a witness; was told that investigators did not wish to charge him and wanted him as a witness; had given two statements in narrative form to investigators without caution; was identified on the Information charging murder as a witness; had been subpoenaed to attend the murder trial as a witness. Notwithstanding this sequence of events and representations, the accused was ultimately charged with assist offender and presented for a joint trial with the two men accused of murder.
In granting a stay, Martin J pointed out that, although much of the impugned conduct was conduct of the investigators, the prosecution had effectively adopted the representations made by investigators and had not demonstrated any good reason justifying the change in position. His Honour explained at [46]-[48]:
In my opinion, it is no answer to the cumulative force of these facts to say that those concerned with the prosecution of Williams and Hersbach within the Office of the Director had not finally decided whether the applicant was to be a witness or an accused. If of any significance, the fact that consideration was first given to this issue in April 1999, but was not resolved in the mind of those making the decision until February 2000, supports the case for the applicant. From the perspective of the accused and the community, the reassurances given by the investigating officers that the applicant would not be charged were confirmed and adopted by the conduct of the Director through his officers. That adoption came in a number of forms and over a lengthy period. No change in circumstances occurred which could amount to good reason for a change in the ostensible position previously taken by the Director.
The community expects that the police will use all legitimate investigatory techniques in the investigation of serious crime. Those techniques include the use of accomplices and lesser offenders as sources of information and as witnesses. The successful prosecution of persons who commit serious crimes is often dependent upon the cooperation of such persons. To that end it is in the interests of justice that such persons be encouraged to cooperate with investigating and prosecuting authorities. The administration of justice will be brought into disrepute if without good reason, the investigating and prosecuting authorities are permitted to decline to comply with the undertakings or assurances given to such persons that they will not be charged and to pursue prosecutions against those to whom such undertakings or assurances have been given.
I stress that these remarks are made in the context of the particular circumstances relating to the applicant. I also stress that the mere fact that an investigating officer has treated a person as a witness and given an undertaking that the person would not be prosecuted will not, in ordinary circumstances, in itself justify the exercise of a discretion to stay a prosecution against such a person. For example, if the Director had decided in April 1999 that the applicant should be charged, while the conduct of the police in their dealings with the applicant may have resulted in the exclusion from evidence of the two statements, in my opinion that conduct would not have justified the exceptional course of staying the prosecution. In such circumstances the Director would not, by the conduct of his officers, have ostensibly adopted the assurances given by the investigating officers. I regard the apparent adoption by the Director, over a lengthy period, of the assurances given by investigating police, and the reliance by the Director upon the applicant's statements before the committing magistrate in the matter of Williams and Hersbach, as particularly important features. The absence of good reason for a change in
Central to the decision to grant a stay in each of the above cases was the proposition that the Crown should not and cannot lightly depart from representations and agreements made by its officers, where a person or party to litigation has relied on those representations and agreements to their detriment.
I acknowledge that cases involving the reneging on something approximating the conferral of an immunity or an undertaking not to prosecute in exchange for co-operation may present a starker example of an abuse of process. Thematically, however, there are common threads between those scenarios and that under consideration. In each case, it is the adoption by the prosecuting authority of a carefully considered position, which the accused acts on to his detriment, and the subsequent resiling from the stated position, that has the tendency to undermine the administration of justice. Where the decision to renege on an agreement, representation or undertaking is also productive of forensic disadvantage, it may more readily be concluded that the continuation of the proceedings would be an abuse of process.
It is of further significance in my view that, here, the agreements made by the prosecution were not informal agreements that remained as between the parties. The agreements were formalised into a joint position of the parties and presented to triers of fact in this Court on two occasions. At the seventh trial, the prosecution unequivocally invited the trial judge to find the facts in the agreements proved and to make his assessment of the complainant’s credibility and reliability on that basis.
Criminal litigation is an adversarial exercise, and, as I have acknowledged, it is for the prosecution to determine how to conduct its case. Any such decisions however must be viewed in the context of the overlay provided by the prosecution’s responsibility to conduct its case fully and fairly. Where the conduct of the prosecution case is or would be productive of unfairness, injustice or would undermine public confidence in the administration of justice, the Court must take appropriate steps to protect the integrity of its processes.
The proper functioning of the criminal justice system requires that the parties to litigation are able to rely on the representations made by and agreements made with their opponents about how a case is to be conducted. That is, to my mind, all the more imperative where one party is a ‘model litigant’. The Court must also be able to rely on the representations of or agreements made between parties and presented to the Court.
It is a most significant thing for a model litigant to invite a court to proceed to determine a case on a particular basis, and to find certain facts proved based on an agreement it has reached with its opponent, only to turn around subsequently and abandon that agreement and foreshadow an intention to contest or at least cast doubt on those facts. If there is a compelling reason for such an approach to have been taken in this case, the prosecution has twice declined the opportunity to put forward evidence explaining as much.
The prosecution’s late decision to abandon the agreements it properly made on two prior occasions and invited the Court to act upon, has compromised the applicant’s ability to establish facts that are of great importance to the proper conduct of his defence of serious criminal charges and which the prosecution previously accepted to be established. The late departure from agreements properly made and adhered to on two occasions by the prosecution in circumstances where it now apprehends that DB will not give evidence consistent with the agreed facts – which is not attributable to any revision by her of the truthfulness of her initial accounts – is apt to bring the administration of justice into disrepute.
Furthermore, having carefully considered and agreed facts based on an acceptance that the affidavits sworn by DB at the time were accurate and truthful, it is, in my view, inappropriate for the prosecution to now seek to go behind those agreements and its acceptance of DB’s previous account as a reliable and credible narrative. I acknowledge, at one level, the tension that might be thought to arise from continuing to agree the facts when DB has ‘walked back’ the vividness or clarity of her memory about these conversations. However, in the unusual circumstances of this case, the manner in which that change has come to light does not justify reneging on the agreements for the reasons I previously set out at [259]-[266].
In circumstances where the prosecution expressly invited this Court to find as proved the facts contained in the agreements D13 (in combination with D12) and P18, it would bring the administration of justice into disrepute to permit the presentation of a prosecution case that calls into question the existence of those facts.
That is not to say that parties will always be irrevocably bound by agreements they enter or representations they make. Much will depend on the circumstances. Representations made or agreements entered on a mistaken or erroneous factual or legal basis may need to be departed from in certain cases.
That cannot be said of these agreements. As I have said earlier, in cases of this kind, it not uncommon for the parties to agree that a witness has made a prior statement inconsistent with their evidence. That approach is often taken for pragmatic reasons in lieu of having a prior inconsistent statement proved in accordance with s 28 or 29 of the Evidence Act. There is nothing inherently wrong or unorthodox about the prosecution agreeing the facts that it agreed in this case.
A different prosecutor appearing at the sixth trial may have declined to agree the facts in D13 and called DB to give evidence. The prosecutor at the seventh trial not only adhered to the agreement in D13 but agreed additional facts based on VDD4, namely, P18. The prosecutor at the seventh trial could have called DB but decided not to. Instead, a further affidavit was taken from DB and based on that affidavit, additional agreed facts were put before the Court.
As to Ms Dunlop SC’s submission that the eighth trial is a ‘new trial’ such that what is proposed by the prosecution here cannot be described as reneging on the agreements because they had in fact not yet been again made at the eighth trial, that submission should be rejected. Whatever the precise meaning to be attributed to the words ‘new trial’ in s 158(3) of the Criminal Procedure Act, that meaning would be informed by the fact that inherent in the granting of a ‘new trial’ in the circumstances contemplated by the provision is that there has been a previous trial of the matter before the Court of Appeal, which because of error, must be reconsidered. In any event, broader considerations of the type I have already traversed would reinforce the importance of a model litigant adhering to agreements it had made at earlier trials, particularly where the effect of those agreements is to render the existence of certain facts uncontroversial.
The combined effect of the procedural history of this matter; the circumstances in which the agreements were first made and adhered to; the import of the agreements and what they reflected about the prosecution’s view of DB’s account; together with the forensic disadvantage to the applicant in now being met with the suggestion by the prosecution, contrary to those agreements, that there is a live issue whether the lies were in fact told by the complainant and whether DB is a reliable historian of such disclosures, is what pushes this case into the category of being ‘exceptional’.
Moreover, there has been no evidence put before me to explain why the previous forensic decisions were wrongly made or inappropriate or why it is now proper for the prosecution not to adhere to the agreements.
Informed forensic decisions were made by the prosecution. Any dissatisfaction the prosecution now has about the course taken at the sixth and seventh trials cannot, without more, suffice to justify it reneging on the agreements, at least not in the absence of a satisfactory explanation.
Re-litigation of facts previously agreed
As I earlier mentioned, I also consider that the abandonment of the agreements and the proposal to call DB, now knowing that her evidence is very unlikely to reflect the previously agreed facts, and to make a submission that the trier of fact ought to approach her evidence with caution, involves something approximating an attempt to re-litigate issues that, at the encouragement of the prosecution, a judge of the Court has previously determined in a particular way (namely, by finding that AW had been lied to her mother about sex with LN).
Although an imperfect analogue, some assistance can be derived from the approach taken in Rogers v The Queen (1994) 181 CLR 251, where three members of the High Court held that it would be vexatious, oppressive and unfair for the prosecution to adduce evidence of confessional statements said to have been made by the accused that had been held in earlier proceedings to have been involuntarily made. The vice in Rogers was that the conduct of the prosecution exposed the accused to re-litigation of an issue that had already been finally determined in earlier proceedings and hence the focus was on the principles of incontrovertibility. Nonetheless, the decision helps to understand how the proposed re-litigation of an issue may amount to an abuse of process. As Deane and Gaudron JJ, with whom Mason CJ agreed, explained at 280:
In the circumstances, tender of the records of interview constitutes a direct challenge to the 1989 determination which was a final determination, or became so, once verdicts were returned. The challenge is one which invites ‘the scandal of conflicting decisions’. And it jeopardises public confidence in the administration of justice: in a context where the onus of proof would be the same and there is no claim of ‘fresh evidence’ or fraud, a determination that the confessions were made voluntarily would undermine the incontrovertible correctness of the verdicts of acquittal returned in 1989; equally, there would be a shadow over any conviction on the charges in the present indictment if confessional statements are admitted in evidence notwithstanding the earlier judicial determination that the circumstances in which they were made did not support a finding of voluntariness.
There are obvious differences between this case and Rogers but it provides some useful conceptual framework within which to examine the current problem. It is also important to remember that what constitutes an abuse of process cannot be defined by reference to fixed categories or past decisions.
To return to this case, at two previous trials of these charges, the trier of fact was to be (sixth trial) or was in fact invited (seventh trial) to determine the ultimate issues in dispute on the basis that the complainant had lied to her mother about sex with LN. In the case of the seventh trial, the prosecution unequivocally told the trial judge that he was being asked to accept as proved that the complainant had made those disclosures.
There is therefore an extent to which this shift in position involves an attempt to re-litigate facts that the prosecution had previously asked two triers of fact to accept as established or, in the language of Taufahema, to advance inconsistent factual allegations. I accept that the trial judge at the seventh trial was not bound to accept the agreed facts or the concession of the prosecution that AW had lied.[90] Whilst clear reasons would have been required in support of a decision not to accept the agreed facts or the concession of the prosecution, the agreement of and position taken by the parties could not, as a matter of law, bind the trier of fact. However, the agreed facts were accepted, at the encouragement of the prosecution, and the trial judge did, as the judgment of the Court of Appeal confirms, find in consequence that AW was shown to have lied to DB, albeit he did not consider that this demonstrated a disposition on her part to make false allegations about sexual conduct.[91]
[90] See, in the different context of sentencing, Malvaso v The Queen (1989) 168 CLR 227, 233; GAS v The Queen (2004) 217 CLR 198, [31]; Barbaro v The Queen (2014) 253 CLR 58, [47].
[91] Park (a pseudonym) v The Queen [2022] SASCA 132, [35].
It may be further accepted that the judge hearing the eighth trial will not be constrained to make the same findings as the judge at the seventh trial did, but it is a different question whether the prosecution’s intention to conduct the trial again absent the agreements is an abuse of process.
The prosecution’s change in position creates the potential for the determination of the applicant’s guilt or innocence on conflicting bases. One basis – put to the trial judge at the seventh trial - involves the acknowledgment and agreement by the prosecution that the complainant had told lies; the other - which it appears the prosecution proposes to put to the trier of fact at the eighth trial - involves a contest about those facts. There is a substantial anomaly in the prosecution proceeding at earlier trials on the basis that, as a matter of factual history, these disclosures were made by the complainant and now seeking to present a case with a view to revisiting that very important concession.
Conclusion
As a general proposition, I accept that the presentation of a prosecution case is a matter for the prosecution. The passages I have cited earlier from Nguyen demonstrate that the discretion reposed in prosecuting authorities as to the conduct of a prosecution is not reviewable.
However, decisions that affect the way in which a prosecution is conducted cannot be divorced from the proceedings in which those decisions manifest. If the manner in which it is proposed to conduct a prosecution would occasion irremediable unfairness, prejudice or oppression to an accused or would otherwise bring the administration of justice into disrepute, a court is duty bound to protect its processes from becoming an instrument of injustice.
In making a decision as to whether the conduct of a trial is relevantly unfair, oppressive or would otherwise bring the administration of justice into disrepute, it is essential that the interests of the community in the prosecution of serious criminal offences and the desire to hold those who perpetrate them to account be given substantial weight. A stay is not to be used to punish a party.
Furthermore, the conferral of jurisdiction to hear and determine serious criminal proceedings carries with it a prima facie expectation that the jurisdiction will be exercised to resolve such disputes. Refusing to exercise jurisdiction is an extreme step to take given the court’s responsibilities to independently adjudicate on legal contests in accordance with the defining characteristics of accusatorial and adversarial justice.
I have borne steadfastly in mind the importance of the trial of these proceedings to the applicant, the complainant and the community in reaching my decision. I acknowledge that the applicant is charged with very serious offences and that the need for these allegations to be resolved through judicial determination is a powerful countervailing consideration.
The procedural history of this matter is both unique and unsatisfactory in many respects from the perspective of the complainant, the applicant and the community. It gives rise to a pressing need for a final determination as to whether the applicant is guilty or not guilty of some or all of the charges. I acknowledge that staying the proceedings, even conditionally, will leave the parties in a state of limbo until such time as the condition on which the stay is granted is discharged or the order otherwise set aside by the Court of Appeal.
The law does not however pursue a resolution of criminal charges at all costs.[92]
[92] R v Davis (1995) 57 FCR 512, 521.
I have reached the conclusion that this is an exceptional case. In light of the prosecution’s change in position, a conditional stay is the only appropriate remedy for what I consider would be a trial that would be so unfair or unjustifiably oppressive to the applicant or would otherwise bring the administration of justice into disrepute.
I reiterate that it should not be thought that the conclusion I have reached means that the prosecution will always, or even more often than not, be bound to an agreed position in relation to facts or exhibits. It is not difficult to contemplate various scenarios in which the departure from a previously agreed position will be entirely unremarkable. Indeed, in most cases, and without more, it is unlikely to be problematic for the prosecution to agree facts at trial and, following a successful appeal, to withdraw its agreement and instead call witnesses to give evidence about those facts.
This case stands very much on its own because of the extraordinary litigation history and the extent to which the prosecution invited or intended to invite triers of fact in this Court to determine the applicant’s guilt or innocence on the uncontroversial basis that the disclosures were made by AW. My decision reflects my view that abandonment of the agreements, which the applicant has relied on for the past 4 years in conjunction with the deterioration in DB’s memory, which casts no doubt on the accuracy of her previous account which was accepted by the prosecution as credible and reliable, compromises the integrity of the administration of justice and brings about a trial that would be unfairly or unjustifiably oppressive to the applicant.
The proceedings are to be stayed until such time as the grounds upon which I consider the continuation of the prosecution to be an abuse are remedied.
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