R v S
[2005] TASSC 18
•31 July 2002
[2005] TASSC 18
CITATION: R v S [2005] TASSC 18
PARTIES: R
v
S
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 191/2001
DELIVERED ON: 31 July 2002
DELIVERED AT: Launceston
HEARING DATES: 9 - 12 July 2002
JUDGMENT OF: Slicer J
CATCHWORDS:
Criminal Law - Jurisdiction practice and procedure - Adjournment, stay of proceedings or order restraining proceedings - Stay of proceedings - Abuse of process - Delay in instituting proceedings - Whether the accused will be prejudiced or oppressed by the delay.
Jago v District Court of New South Wales (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378, applied.
Aust Dig Criminal Law [703]
Criminal Law - Jurisdiction, practice and procedure - Information, indictment or presentment - Joinder - Joint or separate trials - Generally - Discretion of trial judge to make orders - Severance of counts of indictment.
R v Randell [1999] TASSC 78, considered.
Criminal Code 1924 (Tas), s326.
Evidence Act2001 (Tas), ss97, 98(2)(a) and 101.
Aust Dig Criminal Law [725]
REPRESENTATION:
Counsel:
Crown: M A Stoddart
Accused: C C Waterstreet and M F Daly
Solicitors:
Crown: Director of Public Prosecutions
Accused: M F Daly
Judgment Number: [2005] TASSC 18
Number of Paragraphs: 21
Serial No 18/2005
File No 191/2001
THE QUEEN v S
ORAL RULING SLICER J
31 July 2002
S applies for a stay of proceedings in relation to 14 counts of an indictment which alleges acts of sexual impropriety involving four complainants said to have occurred during the period from January 1972 until December 1981.
In the event that the application is unsuccessful, in full or in part, he seeks, pursuant to the Criminal Code, s326, severance of certain counts and rulings in relation to evidence which may be led on any severed counts.
The parties relied on proofs of evidence which form part of the "Crown Papers" and the evidence of witnesses called by the Crown on the hearing of the various applications. Given my determination that the prosecution ought not be stayed and that the indictment ought be severed, with the consequence that there will be more than one trial, it is not appropriate that detailed reasons be published or that, except when essential, findings of credibility of witnesses not be made. Given that it will be necessary for me to conduct a second trial, I will publish these reasons to the parties and not make them publicly available until the end of the proceedings. The rules in relation to evidence are made at this stage of the proceedings and are subject to review, dependent on the conduct of each trial. The manner of cross-examination and the raising of particular issues might require a different determination. That possibility is further reason for the curtailment of these reasons since it is, at this stage, difficult to discern the various permutations which the evidence or conduct of the parties might create.
The indictment alleges 14 acts of sexual impropriety contrary to the Criminal Code, ss124 and 127, but the Crown has indicated that it seeks to lead other evidence of sexual contact as background or relationship evidence.
Nature of indictment
The indictment names four complainants, two of whom are family members of the accused, one of whom is a friend of the family, and one, a person unacquainted with the family who, on the Crown case, became acquainted with the accused through a sporting activity. In addition, the Crown seeks to call as a corroborative witness a person claiming to have been the subject of sexual impropriety who knew members of the family but whose association with the accused is said to have been work related. Nine counts relate to members of the immediate family, three to a family friend and two to an unrelated person. All of the complainants were male youths. The family members were twin boys. The period traversed by the indictment is some eight years and six localities are identified. The particulars can be shown as follows:
Count Complainant Date Location Code 1 Acquaintance January - March 1972 A s127 2 Acquaintance January - March 1972 A s124 3 Family Member 1 January - December 1974 B s127 4 Family Member 1 January 1974 - December 1975 B s127 5 Family Member 1 January 1974 - December 1975 B s127 6 Family Member 1 December 1974 - March 1975 B s124 7 Family Member 1 January 1976 - December 1976 C s127 8 Family Member 1 January 1976 - December 1976 D s127 9 Family Member 1 January 1976 - June 1976 B s127 10 Family Member 1 July 1975 - December 1976 D s127 11 Family Member 2 January 1974 - December 1974 B s127 12 Family Friend January 1976 - November 1976 B s127 13 Family Friend January 1979 - November 1980 E s127 14
Family Friend
January 1981 - December 1981
F
s127
Location B was the family home or its environs and D a holiday house. Location F is said to have been a camping site at which Family Member 1 was present. In addition, the Crown seeks to lead evidence, primarily from Family Member 1, of other acts of sexual impropriety occurring on a regular basis during the relevant periods and the evidence of T, a family friend, of an incident said to have occurred at the workplace of the accused in about 1978 - 1979.
Methodology
The Crown seeks that all counts be heard together and that evidence of each witness relating to both charged and uncharged incidents be admitted against the accused on each count. The defence, understandably, makes its application for stay on the basis that it is impossible through prejudice and volume of evidence for the accused to receive a fair trial and meet the case as presented. Three options suggest themselves in relation to the application for stay. The first is to consider the case in its totality; the second to determine which portions of evidence are admissible on each count and thereby determine prejudice; and the third to first consider the admission of evidence (admissibility or by exercise of discretion) and then determine severance. The methodology chosen is to assume that the totality of the Crown case would warrant stay and then consider whether severance would permit fairness and then determine whether the components of the indictment would, of themselves, warrant stay. At the completion of that process, consideration will be given to the reception of evidence on each count. That course is taken because of the provisions of the Code, ss311 and 326, which relevantly provide:
"311 ¾ (1) An indictment shall be entitled 'In the Supreme Court of Tasmania', with the addition of the name of the place of trial, and shall contain and be sufficient if it contains a statement of the specific crime or crimes with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.
(2) … charges of more than one crime may be joined in the same indictment, if those charges arise substantially out of the same facts or closely related facts, or are, or form part of, a series of crimes of the same or a similar character. In any other case an indictment shall charge one crime only."
"326 ¾ (3) Where, before trial or at any stage of the trial, it appears to a judge that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one crime in the same indictment, or that for any other reason it is desirable to direct that he should be tried separately for any one or more crimes charged in the indictment, the judge may order a separate trial of any count or counts in such indictment.
(4) Where, before the trial or at any stage of the trial, it appears to a judge that the postponement of the trial of the accused person is expedient as a consequence of the exercise of any power of a judge under this section to amend an indictment, or to order the separate trial of a count, the judge shall make such order as to postponement of the trial as appears necessary."
The power to stay proceedings arises from the inherent jurisdiction of the Court to ensure the fair conduct of a trial and prevent oppression. Jago v District Court of New South Wales (1989) 168 CLR 23 and Walton v Gardiner (1993) 177 CLR 378. The power afforded by the Code, s326(4), is more constrained. The commencing point is to consider the application of the Code, s311(2), and, if there be compliance, then to consider prejudice or embarrassment to the defence in determining severance. The Crown is entitled to join the charges stated in the indictment since the acts alleged "form part of a series of crimes of the same or of a similar character" but the question of prejudice is more confined. Time elapsed, connection between complainants, time frame and similarity of alleged conduct are all matters which impact on an exercise of discretion made in accordance with the Code, s326(3). The methodology employed by the High Court in cases such as Pfenning v The Queen (1995) 182 CLR 461; Hoch v The Queen (1988) 165 CLR 292 and BRS v R (1997) 191 CLR 275 is subtly different. In these cases, the High Court, with the benefit of hindsight, has been able to apply the tests of "unsafe verdict", "unfair trial" by reference to what has occurred. The test required by the Code is anticipatory. It is for that reason that without denying the legitimacy of the Crown's position, I have assumed that a trial conducted on the basis proffered by the Crown would be unduly prejudicial to the defence. Unrelated acts involving an unrelated complainant, coupled with relationship evidence of uncharged acts corroborated by a non-complainant alleging a distinct and uncharged act of misconduct appears to me:
"… that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one crime in the same indictment, or that for some other reason it is desirable …"
to apply in this case. For that reason, the Court will assume that the case for stay is made out and the test of severance will first be applied.
The commencing point will be an examination of the charges involving Family Member 1. Those charges involve acts said to have occurred regularly over a three year period. The similarity of alleged acts, their locality and nature warrant their being heard together. They differ little from many cases heard in this jurisdiction which are jointly held. The lack of specificity is not uncommon and is explicable by reason of the age of the complainant at the time of the claimed occurrence. The lack of specificity does not, of itself, warrant severance, but rather remains a question of weight to be assessed by a jury.
It is first necessary to identify the actual prejudice which would prevent the conduct of a fair trial since without specific identification it cannot be shown that the trial would be unfair and amount to an abuse of process (R v Birdsall (unreported New South Wales Court of Criminal Appeal, 3 March 1997, BC 9701099 and, see generally, Henchcliffe, Abuse of Process and Delay in Criminal Prosecutions (2002) 22 Aust Bar Review 18).
The accused claims prejudice on the grounds of:
(1)delay;
(2)lack of precision;
(3)loss of witness and real evidence;
(4)contamination of witnesses.
The delay is considerable but its reason understandable. The complainant was a member of the family unit and through youth and inexperience felt unable to confide in others. The accused was his step-father and assuming for the purpose of this ruling that the jury accepts the accuracy of the complainant's account, the predicament of the complainant is similar to that experienced by many young victims of sexual abuse. The accused became aware of the accusation in 1993 when the complainant told his mother, who confronted the accused and separated from him because of these accusations. Police were notified and the decision by the family not to seek prosecution was one which is not unusual. The effect of the delay is "not such as to produce a situation where any trial of the [accused] would necessarily be an unfair one" (Jago v District Court of New South Wales (supra)) at that time.
The complainant claims a course of conduct and the indictment reflects those incidents which he can identify by reference to a specific location, external event or some particular which has remained vivid in his memory. The particulars stated in the indictment show sufficient detail to enable his version to be checked against other material and alert the accused to the case against him. Cross-examination by counsel for the accused during the preliminary hearing indicates that the accused is able to challenge the accuracy and credibility of the complainant and his corroborative witnesses. A line of reasoning was advanced, based in part on concessions made by the complainant, which could be used before the jury to show inaccuracy or lack of credibility. The case will be primarily word against word and the evidence of delay can be seen as prejudicial to both cases.
In 1993, a report was made to two police officers and certain material provided to them. The matter was not further pursued until a formal statement was made by the complainant. One of the officers, now retired, suffers from a stress disorder and is unlikely to be available, as is some of the file associated with portion of the investigation. However, the other officer is available and still possesses her work diary from which the date and place of the making of the initial complaint can be identified. Cross-examination of witnesses and documentation tendered during the preliminary hearing indicated that a report made by the police officer unavailable as a witness is incorrect in that it attributes an occasion of sexual misconduct as involving a different complainant. Given that the document itself is a secondary document, its relevance is primarily to identify the time at which the complaint was made, rather than its contents. Insofar as the contents might be made admissible as to the existence of the occurrences stated therein, any ruling on its reception ought await trial since the parties might or might not seek to rely on it. Insofar as its existence causes prejudice, I am not persuaded that it would warrant the stay of proceedings. Its effect, and the absence of the witness, might operate to the benefit rather than the prejudice of the defence.
The defence also contends that the passage of time has caused the risk of contamination of witnesses. Much of the evidence given at the preliminary hearing was concerned with this issue. I am not satisfied that there has been contamination or, insofar as the Crown is required to establish the basis for reception, I am satisfied, to the requisite degree, that there has been no contamination, other than that which normally occurs when long held and undisclosed accounts are discussed during a family discussion. Significantly, the mother of the two family members separated from her husband immediately following the initial disclosure. The accuracy of their disclosures ought remain an issue for the jury, but at the time of the making of the complaints, there had been no previous period of tainted discussion. The witnesses are now adults and this is not a case of youthful confusion or susceptibility to the pressure of others. Rather, it is to the contrary in that the witnesses were reluctant to share their experiences or discuss them in detail. The two family members do not purport to corroborate each other's accounts by claims of presence or observation. The circumstances whereby the family friend became aware of the claim of one of the family members and, unwittingly and indirectly revealed his own, were spontaneous and his account is not tainted by contamination.
The public interest in bringing persons suspected of committing crimes is a relevant and cogent factor (R v Lane (unreported, Full Court of the Federal Court 19 June 1995); R v Davis (1995) 57 FCR 512) and it ought only be in exceptional cases that a stay be ordered (Walton v Gardiner (supra) and Jago v District Court of New South Wales (supra)).
The application for the stay of the indictment is refused.
Severance
Once the issue of Family Member 1 has been answered, the question of severance can be answered in the terms stated in the Code, s326. About the issue of contamination, already determined, the joinder of the trial involving the two family members is in accordance with the Code, s311(2). The same can be said for counts 12 - 14 involving the family friend. The alleged misconduct occurred within a family setting and mainly in or in the vicinity of the family home or, in the case of count 12, during a family excursion. The nature of the alleged conduct, the age and identity of the three complainants, the position of the accused, and the delayed complaint by each youth are factors not dissimilar to those considered in R v Randell [1999] TASSC 78, Underwood J. There will be no severance of counts 3 - 14 of the indictment.
Different considerations arise in relation to counts 1 and 2. The allegations relate to a different place and time and involve an unrelated person. It would be difficult for a jury, having received the family related evidence, to consider the guilt or otherwise of the accused in relation to a different, albeit sexual, matter. The application comes within the discretionary power afforded by the Code, s326. The provisions of the Evidence Act 2001 permit, in the Crown's submission, the use of all of the evidence of each witness in consideration of each count. If such be the case, then evidence of sexual misconduct far removed from that alleged in counts 1 and 2, might prove overwhelming and preclude appropriate consideration of the matters encompassed in those counts. If the evidence is excluded by the exercise of the discretion and/or accompanied by an appropriate direction, the effect of prejudice would be considerable. Severance will be ordered.
Uncharged and similar fact evidence
The Evidence Act, ss97 and 101, extends the basis on which evidence can be received and the use to which it can be put. The evidence of the family members and friend will be led on the trial involving counts 3 - 14. However, the evidence of the witness T in relation to those counts would be governed by the Evidence Act, ss97 and 98(2)(a). It lacks the characteristics of similarity of consistency and, in turn, impacts on the question of stay and severance. Its prejudicial effect will outweigh its probative value and may not be led on the trial involving counts 3 - 14; similarly with the evidence of the complainant to counts 1 and 2.
There is similarity between the evidence of T and the circumstances giving rise to counts 1 and 2. The evidence of T may be led on that trial.
Orders
(1) That the application for a stay of proceedings be refused.
(2)That counts 1 and 2 be severed from the indictment and a separate trial ordered in relation to those counts.
Rulings
(3)The evidence of the witness directly involved in the hearing of counts 3 - 14, including uncharged acts of sexual misconduct, may be led on the trial involving those counts. The use to which those portions of evidence may be used by the jury will be determined at trial.
(4)The evidence of the witness T may not be led on the trial involving counts 3 - 14, but may be led on the trial involving counts 1 and 2.
(5)The evidence of the complainant described in counts 1 and 2 may not be led on the trial involving counts 3 - 14.
The rulings govern the leading of evidence as of the date of the conclusion of the preliminary hearing. Agreement by the parties or their respective conduct during trial might require further consideration of the reception of particular portions of the evidence. Those issues can be raised at trial.
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