R v PJ
[2009] ACTSC 165
•11 December 2009
R v PJ
[2009] ACTSC 165 (11 December 2009)
CRIMINAL LAW – Application for permanent stay of proceedings – two counts of attempt to carnally know a girl under 10 years of age – four counts of act of indecency on a girl under 16 years of age – two incidents between 1975 and 1977 – extreme delay – absence of timely complaint – lack of specificity as to time alleged offences occurred – fair trial not possible – application for stay granted
EVIDENCE LAW – complainant four and five years old at time of incidents – no corroborating evidence – unsworn evidence of child – complainant no longer a child – corroborating evidence not required – substantial delay – loss of relevant evidence – need for Longman warning
Evidence Ordinance 197, s 64
Health Insurance Act 1973 (Cth), s 130
Evidence Act 1995
Crimes Act 1900 (NSW), s 418
Evidence Act 1995 (Cth), s 13
Cheers v Potter (1931) 46 CLR 521
R v Cooper [2007] ACTSC 74 (10 September 2007)
Longman v R (1989) 168 CLR 79
R v Geoffrey David Davis [1995] FCA 1321 (23 June 1995)
No. SCC 60 of 2008
Judge: Higgins CJ
Supreme Court of the ACT
Date: 11 December 2009
IN THE SUPREME COURT OF THE )
) No. SCC 60 of 2008
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
PJ
ORDER
Judge: Higgins CJ
Date: 11 December 2009
Place: Canberra
THE COURT ORDERS THAT:
The indictment be permanently stayed.
This was an application to stay proceedings arising from an indictment dated 3 April 2008 containing six counts:
The DIRECTOR OF PUBLIC PROSECUTIONS, who prosecutes in this behalf for Her Majesty the Queen, INFORMS THE COURT AND CHARGES THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra in the Australian Capital Territory [PJ] attempted to carnally know [MJ], a girl under the age of 10 years of age, to wit four or five years of age.
SECOND COUNT
AND FURTHER THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra aforesaid [PJ] assaulted [MJ], a girl aged under 16 years of age, to wit, four or five years of age, and at the time of such assault, committed an act of indecency upon [MJ].
THIRD COUNT
AND FURTHER THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra aforesaid [PJ] assaulted [MJ], a girl aged under 16 years of age, to wit, four or five years of age, and at the time of such assault, committed an act of indecency upon [MJ].
FOURTH COUNT
AND FURTHER THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra aforesaid [PJ] attempted to carnally know [MJ], a girl under the age of 10 years of age, to wit aged four or five years of age.
FIFTH COUNT
AND FURTHER THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra aforesaid [PJ] assaulted [MJ], a girl aged under 16 years of age, to wit, four or five years of age, and at the time of such assault, committed an act of indecency upon [MJ].
SIXTH COUNT
AND FURTHER THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra aforesaid [PJ] assaulted [MJ], a girl aged under 16 years of age, to wit, four or five years of age, and at the time of such assault, committed an act of indecency upon [MJ].
Those counts, according to the Crown Case Statement, relate to two separate incidents, alleged to be typical of about eight others that occurred in between the earliest and the latest dates on the indictment.
On 9 October 2009, the accused applied to have counts 4, 5 and 6 severed or that the indictment be stayed. On 13 October 2009 a further application was made that the indictment be stayed.
This was on the basis of the following matters.
First, that the evidence of the complainant supporting the allegations could not be supported, save as to opportunity, by any other witness. The only additional witnesses were to be her parents whose evidence was relevant only as to that issue.
Second, at the time of the alleged offences, the complainant was between the ages of four and six years. Section 64(3) of the Evidence Ordinance 1971, then in force, provided that unless she was, if then giving evidence, able to give sworn evidence, her evidence was to be disregarded unless corroborated.
Third, that, in any event, the evidence of the complainant, by reason of delay, could not be relied upon with safety unless corroborated. There being none, the proceedings were doomed to failure and, for that and other reasons, oppressive.
Finally, generally, the proceedings were, in any event, an abuse of process by reason of the inordinate delay in bringing the prosecution.
It should be noted that the accused is now aged 51 years (dob 21.05.58) but, at the time of the alleged offences, was under the age of 18 years. Hence he remains, for the purposes of these proceedings, a juvenile. Neither he nor the complainant can be named or identified.
The complainant’s mother is the daughter of the accused’s adopted mother. Hence, she was, in law, the accused’s niece at the relevant time.
It is not alleged that the complainant and accused were part of the same household. Rather, it is alleged that the complainant was left in the care of the accused from when she was four years old (ie from late September 1975) until just after her brother’s birth in early February 1977. She would then have been five years of age.
Over that time period, the occasion for the complainant to be left with the accused was that the complainant’s grandmother had become chronically ill and needed to be taken to her doctor by the complainant’s mother and father. The Crown Case Statement recites the facts of which it was anticipated that the complainant would give evidence as follows:
The First incident
On the first occasion the complainant was left alone with the accused, the accused took the complainant into the kitchen. The accused asked the complainant to climb on to the table using a chair. The accused gave the complainant various instructions or directions about what to do which the complainant complied with because the accused was an adult.
The accused told the complainant to lie on the table and to lay on her back. The accused pushed her legs apart. The accused took her clothes off. The accused took his trousers off and his penis was exposed. The accused kissed the complainant with an open mouth on her mouth. The complainant tried to turn her face away. The accused grabbed his penis which was erect and tried to put it in the complainant’s vagina. The complainant felt the penis go into her vagina but was unclear about whether it did in fact penetrate: count 1 – attempt carnal knowledge. The accused then began to kiss and lick the complainant’s vagina: count 2 - indecent assault. The accused then told the complainant to put his penis in her mouth. He moved her head towards his penis and she did so. While it was in her mouth the accused thrust his pelvis backwards and forwards. He ejaculated in her mouth: count 3 – indecent assault. The complainant dry retched. The accused told the complainant to not say anything to her parents. He told her she would not get a present from them and she would get into trouble, and it would upset her grandmother. The accused dressed the complainant and soon afterwards her parents and grandmother returned home. The complainant felt sore in her vaginal area for some days afterwards.
From this time until just after the birth of the complainant’s brother, the complainant was left alone with the accused on a number of occasions. On each occasion when she was left alone with the accused the accused would perform sexual acts of a similar nature to those described above on the complainant. The complainant believes she was left alone with the accused about ten times. The prosecution intend to rely on this evidence as relationship evidence rather than going to a specific count.
Second specific incident
The complainant recalls another specific incident. The complainant was alone with the accused at her grandmother’s house. The accused took the complainant to a room known as the TV room where there were bean bags. He put her in a bean bag. He undressed her so she was naked. He tried to put his erect penis into her vagina but was unable to: count 4 – attempt carnal knowledge. He then kissed and licked her vagina: count 5 - indecent assault. The accused then put his penis into her mouth until he ejaculated: count 6 - indecent assault. He gave her a glass of water. The complainant felt sore around her vagina afterwards.
The last time the accused looked after the complainant alone was when the complainant’s mother was in the Canberra Hospital after giving birth to the complainant’s brother [DA]. Hospital records show the complainant’s mother was discharged from Canberra Hospital on 14 February 1977.
The first person the complainant told was her friend Sonia Forostenko (now Sonia Steiner). The complainant told Sonia when she was in High School in 1988 or 1989. Ms Steiner’s memory of the conversation is that the complainant told her that “Uncle [PJ] used to abuse me.” The complainant told her it happened on the kitchen table while [DA] was playing in the loungeroom. Ms Steiner asked the complainant “Did he have sex with you.” At the time the complainant thought of “having sex” as penile vaginal sex and said “No, but he did other things.” The prosecution cannot lead this hearsay evidence in its case as it is not fresh in the memory as required by s.66 of the Evidence Act. However, the prosecution may seek to lead this evidence pursuant to s. 108 of the Evidence Act to re-establish credibility if it is suggested in cross-examination of the complainant that the allegations of the complainant are recently contrived.
The complainant told her mother in 1997.
On 14 February 2007 Constable Matthew Ciantar of the AFP spoke with the accused about the allegations of the complainant. The accused told Constable Ciantar that he was never left alone to baby sit the complainant.
The case against the accused consists of:
1. Evidence of the complainant about the incidents.
2. Evidence of the complainant’s father [S], and her mother [J] that the complainant was left with the accused to be babysat while he and his wife took [P] to the doctor. They can also give evidence of the lay out of the premises at [T] St Ainslie that is consistent with the complainant’s evidence.
On 2 October 2008, I refused a Crown application to use evidence of the intervening acts as tendency evidence. That would not, of course, have precluded the admission of such evidence on other grounds.
The present application, however, is for a stay of proceedings. That is on the basis that, in all the circumstances, including the long delay since the events occurred, a fair trial is not possible. Those circumstances include the loss of or unavailability of relevant evidence due to the lapse of time.
Loss of relevant evidence
It is accepted that a part of the circumstances surrounding the alleged offences is the treatment of the complainant’s grandmother by her General Practitioner at his nearby practice. The grandmother passed away in 1992. The medical records were destroyed in approximately 2002. Both the doctor and his receptionist are deceased. It follows that there is no record of the dates, times and observations on the consultations between the grandmother and the doctor. If the Commonwealth Department of Health and Aging has any secondary records of such consultations, it refuses to produce the same relying on s 130(2) of the Health Insurance Act 1973 (Cth).
Another doctor took over treatment of the grandmother but has only a personal recollection, without specific details, of the grandmother’s attendance at the practice whilst the previous doctor was alive.
The accused, in 1974, had employment with the Australian Schools Commission from March 1975 to June 1976. During that period he was at work usually between 8:30am and 4:51pm. He did not drive and was given a lift to work by a Mr Murray. He took a bus home. Mr Murray is now believed to be deceased. There would have been no opportunity for the offending behaviour alleged on the days the accused was at work.
The Australian Schools Commission was abolished in 1988. No records, if they exist, have been located to verify the accused’s employment and the days and hours of it. It covers nine months of the 17 month period over which it is alleged that the offending behaviour occurred. It is not now possible to correlate the employment records and the medical records to ascertain if they are consistent or not with the complainant’s allegations or with her parent’s statements about leaving her with the accused.
According to the Crown case, the first disclosure of any alleged sexual abuse was made to a younger school friend in about 1988 of 1989. That evidence would not be admissible at trial by reason of s 66(2) of the Evidence Act 1995.
It appeared from the statement of the complainant’s mother that there was a period when the complainant was left with the accused whilst the grandmother was with her doctor. At times she, and the complainant’s father, took the complainant with them to the doctor. That happened over a two year period. The first they were told of the allegations was after the complainant had become addicted to drugs and attended rehabilitation facilities. That, the mother believed, was about mid-2000. It was not until about 2005 that the mother raised the issue with the accused. He vehemently denied the allegations.
The complainant’s father could not recall details of the accused minding the complainant, though he recollected he had at some point done so, but recalled it as being “about” February 1977. He confirmed that, at one stage, the accused was employed with the Public Service.
Neither parent recalled any unusual reaction to or interaction between the accused and the complainant before the disclosure to them of her allegations in 2000.
Even so, no report was made to police of the accused’s alleged offending behaviour until 31 January 2007.
The admissibility of the complainant’s evidence
It is conceded by the Crown that the evidence of the complainant is uncorroborated and is incapable of any support from any other evidence. It is also the case that, at the time the offending behaviour allegedly occurred, the complainant, being four or five years of age, would probably have been incapable of giving sworn evidence.
Section 64 of the Evidence Ordinance 1971 provided:
(1)Where the evidence of a child who has not attained the age of fourteen years is required in a proceeding, the court may receive that evidence without administering an oath or requiring an affirmation or declaration and, subject to the next succeeding subsection, without any formality.
(2)The court shall, before receiving evidence in pursuance of the last preceding sub-section, explain, or cause it to be explained, to the child that he is required to tell truthfully what he knows about the matter to which his evidence relates.
(3)Evidence admitted in pursuance of sub-section (1) of this section on the trial of a person charged with an offence shall be disregarded unless it is corroborated by other evidence implicating that person.
This provision reflects the provisions previously contained in the Crimes Act 1900 (NSW) (s 418) which allowed for unsworn evidence of a child to be admissible where sworn testimony could not be taken.
A question may be raised as to whether a child of tender years is able to give sworn testimony. The High Court resolved that issue in Cheers v Potter (1931) 46 CLR 521. The first question is whether the child understands and accepts the binding nature of an oath. If not, the alternative is whether the child understands and accepts the binding nature of an affirmation. In either case, the evidence may be received as sworn testimony not requiring corroboration. If neither condition can be satisfied, then s 418 or, from 1971 through to 1995, s 64 of the Evidence Ordinance, applied. The current provisions are to be found in s 13 of the Evidence Act 1995 (Cth). I considered the effect and application of those provisions in R v Cooper [2007] ACTSC 74 (10 September 2007). They, in effect, remove the requirement for corroboration of unsworn evidence.
There is now no requirement for the evidence of a child, sworn or not, to be corroborated nor does it attract any warning that such evidence is inherently unreliable.
The provisions of s 64 do not apply to this complainant. That provision is applicable only to a child who is giving evidence. It does not apply to an adult giving evidence of events that occurred when he or she was a child. That is not to say that it is not a relevant matter that the events of which this complainant would give evidence occurred when she was a child of four or five years of age.
The Longman warning
The delay in this case is extreme. The High Court in Longman v R (1989) 168 CLR 79 has made it clear that in the case of substantial delay in pursuing allegations of alleged sexual offences, a jury must be warned that the delay will prevent evidence from being adequately tested. For that reason alone, a jury must be warned that it would be dangerous to convict on the evidence of the complainant alone unless in all the circumstances the jury is satisfied, to the criminal standard of proof notwithstanding that warning, that it is true.
The jury must be further warned that the effluxion of time may deny the accused the forensic advantage that a more timely complaint might have allowed. The accused is denied the opportunity to assemble evidence of what other potential witnesses were doing or saying at the relevant time.
Related to that warning is the fact that even peripheral witnesses such as the complainant’s parents, may have been, though honest, faulty in their recollection.
In the present case, a further warning would be required to the effect that recollection of events occurring in childhood, particularly early childhood, is frequently erroneous and liable to distortion. That liability to error increases with delay, particularly in the absence of any timely complaint and a lack of specificity as to the time the alleged offences occurred.
A permanent stay
In addition to the need for a Longman warning, including a reference to the tender age of the complainant when the alleged offences occurred, there is the actual prejudice arising from the long delay in this case which I have detailed.
I note that in R v Geoffrey David Davis [1995] FCA 1321 (23 June 1995), the Full Federal Court (Wilcox, Burchett and Hill JJ) supported a permanent stay order in respect of allegations of sexual offences committed by a medical practitioner. There were multiple complaints alleging offending conduct between 1960 and 1974. Patient records which might have assisted to support or contradict the allegations had been destroyed. That caused specific prejudice to the fairness of any trial. The Full Court agreed that a fair trial was not, in the circumstance, possible any longer.
In my view, this case is a stronger one for concluding that a fair trial is not now possible. There is but one complainant who was a child at the time of the alleged offending behaviour. The Longman warning would require the exercise of even greater caution than it would have in the case of Davis (supra).
Accordingly, I directed, and now confirm, a permanent stay of this indictment.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 11 December 2009
Counsel for the Crown/respondent: Mr A Doig
Solicitor for the Crown/respondent: Director of Public Prosecutions (ACT)
Counsel for the accused/applicant: Mr R Thomas
Solicitor for the accused/applicant: Gordon Naylor and Associates
Date of hearing: 12, 13, 15 October 2009
Date of judgment: 11 December 2009
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