R v Pratt

[2006] NSWDC 48

CITATION:	R v Pratt [2006] NSWDC 48 This decision has been amended. Please see the end of the judgment for a list of the amendments.
JUDGMENT DATE:	7 April 2006
JUDGMENT OF:	Williams DCJ at 1
DECISION:	Application for a certificate refused.
CATCHWORDS:	Costs - Indictable offence - child sexual assault - no further proceedings - credibility and demeanour of witnesses - lack of complaint - onus on applicant - application refused
LEGISLATION CITED:	Costs in Criminal Cases Act 1967 Suitors Fund Act
CASES CITED:	R-v- Manley (2000) 49NSWLR 203 R-v McFarlane (Blanch J 12 Aug 1994 Unreported.)
PARTIES:	Regina Pratt
COUNSEL:	Crown:- Mr Apps Applicant:- Mr Hamill SC
SOLICITORS:	Solicitor for Public Prosecutions

Application for Costs.

Regina -v- Pratt

1. This is an application for a certificate under the Costs in Criminal Cases Act 1967.

BACKGROUND

2. Mr Pratt was arraigned before Acting Judge Andrew on the 15th June 2005 on a number of charges. They were, that between the 1st of August 1996 and the 30th of September 1996 he had sexual intercourse and indecently assaulted his 9 year old daughter, being 2 charges, that between the 15th of October 1996 and the 30th October 1996 he had sexual intercourse on three occasions and indecently assaulted her on three occasions being a total of 6 charges and the ninth count on the indictment was that between the 1st of December 1999 and the 31st of December 1999 he indecently assaulted his daughter who was then aged 12.

3. A certificate can be granted if the court finds that, had the prosecution, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings. There is a further qualification in ss3(b) that any act or omission of the defendant that contributed or might have contributed to the institution or continuation of the proceedings was reasonable in all the circumstances.

4. On the 20th of June 2005 the jury were discharged because they were unable to reach a verdict on any one of the nine offences on the indictment. On the 26th September a second trial commenced before Judge Freeman and a jury on a similar indictment but one that did not include the ninth count of the former indictment. On the 27th September, on the Crowns application, the jury was discharged because Senior Counsel representing the defendant opened to the jury in respect of the Crown not proceeding with this ninth count and the court took the view, rightly or wrongly, that that jury was compromised. A certificate under the Suitors Fund Act was granted. A new statement by the complainant’s mother was also served on the same day. On the 28th September there was an application by Mr Pratt to vacate the trial date so that information relating to the initial 1996/97 police investigation could be obtained. The trial judge acceded to that application and the trial date was vacated.

5. In 2006 between the 16th and 17th of March there was a discussion between counsel relating to the likelihood that the Director would terminate the proceedings and on the 20th of March 2006, the District Court was advised that the Director of Public Prosecutions had ordered no further proceedings on the basis that the complainant didn’t wish to give evidence again.

LEGAL ISSUES

6. The Director of Public Prosecutions does not take any point that there is jurisdiction to deal with this matter under ss2(1)(a) which states that where after the commencement of a trial in the proceedings a defendant is acquitted or discharged in relation to the offence concerned or a direction is given by the Director of Public Prosecutions that no further proceedings be taken (etc)… Counsel for the Director conceded that the qualification of being “after the commencement of a trial in the proceedings” had been satisfied.

7. Unless a witness is objectively unreliable, inaccurate, inconsistent and/or untruthful, Wood CJ at CL in R-v- Manley (2000) 49NSWLR 203 said that “Matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be judge or jury.” His Honour at that point was referring to what Blanch J said in R-v McFarlane (Blanch J 12 Aug 1994 Unreported.) Extracts from that judgement appear at page 205 and 206 of the report. Suffice to say that Wood CJ at CL agreed with other decisions in which R-v- McFarlane had been approved in saying that it would be unwise to attempt to lay down any all embracing definition of the circumstances in which it would be unreasonable to institute proceedings given the wide variety of cases that might arise for consideration. His Honour went on to say,

“ It seems me that the section calls for an objective analysis of the whole of the relevant evidence, and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilty or inherent weakness in the prosecution case.”

8. A number of the cases referred to concern disputes between experts as to such matters as cause of death or how offences came to be committed such that a conviction relied for proof on the acceptance of one expert when there were other experts saying something different. Counsel for Mr Pratt, Mr Hammil SC has provided, with his junior counsel, written submissions which were spoken to briefly and the Crown has also provided written submissions to which he has spoken to briefly.

THE APPLICATION

9. It is probably convenient to deal with the matter by following the submissions that Mr Hamill says are relevant to the considerations under s3(1)(a) of the Costs in Criminal Cases Act.

10. In paragraph 4.1 of the submissions it is argued that the evidence led in the defence case in the first trial established a lack of opportunity to commit the offence referred to in the ninth count of the indictment being the offence in 1999. The evidence established by cross-examination of the complainant that the time that that offence could have been committed was restricted to one particular weekend in December 1999. The defence led evidence that established on the 2 nights of that weekend Mr Pratt had gone out to a function with his then partner and that the complainant was being baby-sat by the partner’s older daughter. The argument being in that regard that the opportunity to commit the offence would have been little, if non-existent, and the fact that the Crown decided not to continue with that count at the second trial was an indication that they realised its inherent weakness.

11. The evidence as to what occurred on this particular occasion is contained at page 20 and 21 of the transcript. In evidence-in-chief, the complainant said that she had gone to bed and a little bit after Mr Pratt came up to tuck her in and when he was tucking her in he put his hands down her pants and touched her on the vagina rubbing it quickly then he put his hands under her top and touched her breasts quickly as well. It is probably fair to say if that incident occurred it would not have taken place over a very long period of time. It is true that the defence led evidence as to the fact that Mr Pratt had been at two functions on the two nights of that particular weekend, but it seems to me that that would not necessarily preclude an opportunity to have committed that particular offence. It’s not as if he had not been at home at any stage before going out that night nor was it a case of him not even being at the home on those nights, for example.

12. The reason why the Crown declined to go ahead with that matter on the second trial may well have related to factors other than its assessment of the Crown case and in any event the complainant maintained that the act had happened. The resolution of such an issue is really a matter for a jury and not for a predetermination by a prosecuting authority unless it can be established that the complainant herself is someone who is so completely unreliable and untrustworthy that what she says should never have been accepted.

13. One thing that needs to be borne in mind is that at the time in 1996 when most of these allegations were based, Mr Pratt and his former wife were undergoing what was quite a bitter matrimonial dispute in the Family Court.

14. This leads me to a consideration of the remaining matters on which the defence relies on to obtain a certificate and that in essence is that despite the fact that these allegations of sexual impropriety between Mr Pratt and his children had been made in 1996 and 1997, there was no complaint by any of the children to any person in authority of anything untoward in his behaviour. Indeed, the complainant, as is pointed out in the submission on a number of occasions, expressed a clear desire to remain with her father. It is said that this desire in the complainant to remain with her father, would militate strongly against the likelihood that she was being sexually abused at that time, which was the situation in regards to counts 1 to 8, let alone such a finding beyond reasonable doubt.

15. It is further argued, at 4.3 of the submission, that there was a thorough investigation of the matter in 1996 and 1997 in regard to allegations raised by the complaints mother in the Family Court, which involved investigations by the Department of Community Services and the police, and yet none of the three girls made any allegations of indecent or sexual touching at that time. At page 46 of Document Bundle ‘B’ there is a COPS entry that on the 21st of November 1996, 2 district officers interviewed the complainant at school in front of her principle and there was no disclosure made about the father. Then on the 27th March 1997, a joint interview was conducted by Det. Senior Constable Hannigan and Anne McKenzie with the three daughters separately however none of the children made any disclosures concerning sexual abuse by their father. The narrative concludes that “taking into account the report of Dr Waters concerning his appraisal of the children and their nondisclosure it is recommended that this investigation be finalised and no further police action taken”.

16. The reference to Dr Waters relates to two psychiatric examinations made of the Pratt family by Dr Waters, the first contained in a report of the 16th December 1996 which is page 3 of the bundle and the second contained in a report dated 21st March 1997 which commences at page 12 of the bundle.

17. In the 1996 report Dr Waters indicated that he had interviews with the mother Mrs Carmel Pratt on the 2nd, 11th and 13th of December 1996 and with the three children on the 2nd of December 1996 and with two children on December the 11th 1996, the father Gregory Pratt on December 4th, 12th and 13th 1996, with one child on December the 4th 1996, and, with the three girls on December 12th 1996, the complainant on December the 4th 1996, two girls on December the 2nd 1996 and the paternal grandparents Mr and Mrs Pratt on December the 16th 1996, and Mr Pratt’s sister Jolene Punter on the 16th December 1996. Mr Pratt’s sister had also made an allegation of sexual assault against her by Mr Pratt. Dr Waters report is primarily geared towards helping the Family Court to determine in whose custody these children should be. About the only comment contained in that first report in regard to the complainant is at page 6 of the report where Dr Waters said that she tended to be a little more aloof with both parents and tended to supervise the other children’s activities. At page 7 he said that she seemed to be a well adjusted little girl. He concluded by saying “moreover my examination does not assist in determining the risk to her of sexual abuse although I am satisfied that the father inappropriately touched his sister when he was an adolescent.”

18. The second report in March 1997 was the result of an interview with the mother Mrs Carmel Pratt on March 10th 1997 and the three children on March the 10th 1997, the father Mr Gregory Pratt on March 10th and 18th 1997 and with the girls again on March 10th 1997 and the girls together and the complainant alone on March 10th 1997. In this report at page 5 he says

“ She agreed to talk with me by herself. She seemed to be choosing her words very carefully. She told me that she sort of feels like being with her father, but she also feels like being with her mother. She can’t make up her mind, which would be better. She told me that her father doesn’t mind if they take things from his house to their mother’s house. She had a few minor criticisms of the mother and her boyfriend. Overall, she gave the impression of still being loyal to her father but also having a clear desire to maintain a place for her mother in her life. When I saw the father with the children, one child once again stayed very much on the periphery. All the children gave their father a kiss. The complainant and another child were very affectionate with him.”

19. Later Dr Waters said that the complainant seemed to be happier and less defensive than when he first saw her, although she was clearly torn between both parents. At page 6 he concluded as far as another daughter was concerned there was little or no basis for believing that the father had sexually molested her. Otherwise the report is not terribly helpful in resolving the matter that’s before me.

20. At paragraph 4.4 of the submissions the defence raises the forensic disadvantages suffered by Mr Pratt as a result of the delay in complaint and the fact that there would be a necessity at the trial, for a warning to be given to the jury on that question. At 4.5 reference is made to the directions necessary to be given about the impact of the delay, the failure to complain to DOCS and the investigating police and the relevance of that as to the credibility of the complainant. Reference is also made to a statutory direction under s294 of the Criminal Procedure Act.

21. At paragraph 4.6 reference is made to the inconsistency between the evidence of the complainant and her mother as to when the complainant said that she had told her mother about the abuse. In the first statement the complainant made to the police made on the 7th of May 2004, she said that she was around 9 when she told her mother that her father had touched her although she didn’t remember what had actually been said as she always tried to block it out. In another statement made on the 16th June 2004 at paragraph 5 she said “ I remember that my dad would say that he would hurt my mum if I was to say anything and he used my mum as to being the one he would hurt if I told…” And at paragraph 8 “I said in my first statement that I didt tell my mum about what my father was doing to me when I was aged around 9. I believe that was around the same time these two ladies spoke to me and the male counsellor.” In her third and final statement made on the 30th June 2004 the complainant said this at paragraph 4 “What I detailed in my first statement are the memories that are the clearest and ones that I can say are individual times that something occurred. Because this type of thing was normal in my upbringing and happened all the time, I am finding it very hard to describe other things that happened on different days and different times. I would like to talk about things that happened all the time and because they happened all the time they felt normal to me but it is hard for me to separate them.” The concluding paragraph of her statement at that time says this “There are lots that happened to me but what I have said today and my other statements are things that I can remember at this stage. I can remember the other things but they are like little tiny bits, like glimpses of things that have happened.”

22. At page 34 of the transcript the following questions and answers occurred

Q: In fact, so far as I understand your evidence, you did nothing at all to reveal what your father had done to you to your teacher, the police officers, the head master, or your mother at that time did you?

A: No

Q: You told the police officers in May of last year that it was when you were around nine, that you told your mother that your father had touched you, do you remember telling the police officer that?
A: When I went to speak to the two ladies.

Q: No listen to my question please. In May of last year, when aged 17, you went to tell police these things, you told them that it was when you were nine that you told your mum that your dad had touched you, do you remember saying that?
A: Yes

Q: Well that didn’t happen did it. You didn’t tell your mother when you were aged nine that your father had touched you did you?
A: Yes I did.

23. In the mother’s evidence at page 75 of the transcript she was asked in cross examination “Q: I won’t try with the years, I’ll just talk about when she was aged nine the complainant at no time told you that her father had touched her inappropriately did she? A: No”. It’s said in the submissions that it’s unlikely that there ever was such a complaint as it was never raised in the bitterly fought family law proceedings and the assertion of such a complaint seriously undermines the credibility of the complainant.

24. The submissions then move onto the suggestion that there was a lack of credibility to the complainant’s explanations for her failure to complain earlier. They were that she didn’t know it was wrong or that she was scared. It is argued that in light of the education she would have received at school and the intervention of the counsellors, the DOCS officers and the police officers it is impossible to believe that she would have really thought that such behaviour was normal, even taking into account her age at the relevant time.

25. Mr Pratt made a record of interview in which he denied the general allegations that had been made but he declined to comment on specific allegations. He gave sworn evidence denying all allegations and was unshaken in his denials. The submission is made at 4.12 that if at the time the proceedings were commenced the prosecution had been in possession of all these facts it would not have been reasonable to institute the proceedings.

ARGUMENT

26. As can be seen these submissions relate to the quality of the evidence that was available to the Crown. They traverse matters that relate to the jury being able to assess the credibility, consistency, accuracy, reliability and demeanour of the complainant and the various required warnings to be given to a jury by the judge where there is only the evidence of the complainant as to the acts themselves and where there has been a delay in the complaint. In that regard the law itself recognises that in sexual assault cases, where there has been a delay in complaint and/or where the only evidence against the accused is that of the complainant herself, that a jury needs to look at the complainant’s evidence with a great deal of caution. However those facts could not possibly render a decision to prosecute becoming an unreasonable one. It is one that prosecutors face in a significant number of sexual assault trials, particularly where young children are concerned.

27. The fact that the complaints weren’t made to police officers at the time or counsellors or DOCS officers has to be looked at in the light of the age of the child at the time, the extraordinarily difficult circumstances the children were in, being partly shared between their mother and their father, and the bitter proceedings that were underway in the Family Court at that stage. There may be many reasons why a child would not wish to complain about such matters at that point of time but they are issues peculiarly within a jury’s frame of reference to determine whether they are prepared to rely upon a complainants evidence.

28. It may be the case, and indeed given that there is apparently only a 35% conviction rate in respect of sexual assaults at trial, that juries routinely have difficulty in accepting a complainant’s evidence in these sorts of matters. That’s still doesn’t render the decision to prosecute an unreasonable one. The fact that she didn’t complain to the counsellors, her principal, the police officers and the DOCS officers was canvassed by Ms Fullerton of Counsel who was appearing for Mr Pratt at the time, in cross-examination of the complainant. The cross-examination of the complainant in regard to the fact that she hadn’t said anything to these persons has already been referred to above and that was taken further at page 35 of the transcript and 36 where the following questions and answers appear

Q: What was the extra bit that I haven’t reminded you of but that you will doubtless remember telling us?
A: He said that if I went with my mum that he would have to kill them.

Q: He would have to kill them. Where were you, do you say, when your father said those words to you ?
A: At his house

Q: In what circumstances do you say your father said those things?
A: When my mum came over and was trying to take us.

Q: I see. Is this the occasion when the two uniformed police officers were at your house.
A: Yes.

Q: And you didn’t think to say to the policemen, my father wants me to stay here. I don’t want to stay here but I am frightened that if I don’t stay here, he is going to kill my mother and my sisters?
A: No.

Q: Why not?
A: Because I was scared and I trusted my dad.

Q: Your father, according to you, has just threatened the worst possible retaliation against your mother and your sisters, namely a threat to kill them?
A: Yes.

Q: And you say you trusted him do you? Can you explain to us please how those two concepts sit together?
A: I thought he really wanted me to stay with him and that I really was his favourite and I thought that my mum did hate me and stuff and I wanted to stay with him.

Q: You wanted to stay with the man who had very recently, according to you, hurt you very badly by putting his fingers inside you and by causing you to masturbate him, is that right?
A: Yes.

29. Later at page 43 the complainant said this:-

A: Well you said that why I didn’t tell the ladies because I’m trying to explain, because I trusted my dad and everything he told me and he said no one will believe what I said and that’s why I didn’t say anything.

Q: How could you trust a man, you tell us please, how could you trust a man who said that he would kill your mother and your sisters if you left him and that he would hurt your mother if you were to say anything about what it was that he had been doing to you. How could you trust any man in those circumstances, you tell us?
A: Because he always made me feel like I was the favourite and he was the person that I trusted the most.

Q: But a threat to kill, that’s a serious thing isn’t it?
A: I know but I still trusted my dad.

RESOLUTION

30. The defence has the onus on an application such as this to establish on the balance of probabilities that it was in all the circumstances unreasonable for the prosecution to institute the proceedings in question knowing now what the prosecution know. As the Crown says in it’s written submissions, none of the points raised by the applicant are ones that aren’t usually found in sexual assault cases and would not of themselves warrant the granting of a certificate.

31. Additionally it seems to me that the matters that have been raised are either ones concerning the judgment of credibility and demeanour, which lie in the province of the jury, or are matters of law that require directions to be given to a jury in such cases and upon which, applying that law correctly, they will make and assessment of the credibility and demeanour of the witnesses and the other facts in the Crown case in order to achieve a result.

32. In those circumstances, I am not satisfied that the applicant has made out a case for me to grant a certificate. The application is refused.

31/10/2006 - Remove the references to complainant's name - Paragraph(s) 15, 17, 18, 19, 22, 23, 28, & 29