R v S

[2008] QDC 205

DISTRICT COURT OF QUEENSLAND

CITATION:	R v S [2008] QDC 205
PARTIES:	R v S (applicant)
FILE NO/S:	DIS 3070/08(5)
DIVISION:	Criminal
PROCEEDING:	Application to permanently stay criminal indictment
ORIGINATING
COURT:	District Court, Ipswich
DELIVERED ON:	2 September 2008
DELIVERED AT:	Ipswich
HEARING DATE:	26 June, 29 August 2008
JUDGE:	Koppenol DCJ
ORDER:	That Indictment No. 241/08 be permanently stayed

CATCHWORDS: CRIMINAL LAW – STAY OF PROCEEDINGS – LENGTHY DELAY – CONSEQUENTIAL FORENSIC DISADVANTAGES – whether fair trial possible – whether permanent stay of indictment appropriate.

Jago v District Court (NSW) (1989) 168 CLR 23, applied
Longman v The Queen (1989) 168 CLR 79, considered
R v Noyes [2003] QCA 564, distinguished

R v Smith [1998] QCA 460, applied

COUNSEL:	P Hardcastle for the applicant R Swanwick for the respondent
SOLICITORS:	Ryan Lawyers for the applicant Director of Public Prosecutions (Qld) for the respondent

1. This is an application to permanently stay particular criminal proceedings against the defendant, based upon the delay in bringing the matter to trial and the consequential forensic disadvantages suffered.

2. The applicant defendant is charged with raping the complainant on a date unknown between 1 September 1962 and 2 December 1964 at Hattonvale. At that time, the complainant was aged between 5 and 7 years and the defendant was between 14 and 16.

3. The Court has power to permanently stay criminal proceedings if the extensive delay in bringing on a trial would result in its being unfair: Jago v District Court (NSW) (1989) 168 CLR 23, 34, 49, 56, 59-61, 71-2, 75-6, 78.

4. In the present case, the delay is some 43 to 46 years.

5. Mr Hardcastle’s principal arguments in favour of a stay were that:

• the complainant’s recollections were just childhood flashbacks;

• the complainant’s and defendant’s ages and locations at the time are in doubt;

• medical records which may assist in clarifying the date of the alleged incident no longer exist;

• the long delay has unfairly prejudiced the defendant’s capacity to get a fair trial; and

• this could not be remedied by a Longman direction.

1. Mr Swanwick opposed the application and submitted that:

• the complainant said that the alleged incident occurred when she was in grade 1 or 2 at Hattonvale School―which was in 1963 or 1964;

• those dates were sufficient to date-particularise the indictment, regardless of any missing medical records; and

• any unfairness to the defendant could be remedied by a Longman direction.

1. The direction required by Longman v The Queen (1989) 168 CLR 79 applies when fairness in a criminal trial for a sexual offence is thought to be impaired by a long delay in bringing the matter to trial. Brennan, Dawson and Toohey JJ said (at 91) that:

   “The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence…