R v Sichter
[2001] QDC 75
•11 May 2001
DISTRICT COURT OF QUEENSLAND
CITATION: R v. Sichter [2001] QDC 075 PARTIES: JOHN LIONEL SICHTER Applicant
and
THE QUEEN RespondentFILE NO/S: 44 of 2001 DIVISION: Criminal jurisdiction PROCEEDING: Application ORIGINATING COURT: Mackay DELIVERED ON: 11 May 2001 DELIVERED AT: Mackay HEARING DATE: 11 May 2001 JUDGE: Judge Forde ORDER: INDICTMENT BE PERMANENTLY STAYED. CATCHWORDS: Criminal – stay of proceedings – death of material witness – delay by prosecution – no fault on the part of the applicant – chances of acquittal diminished – ss.93B(2) and 93C(2) Evidence Act as amended.
Jago v. District Court ((NSW) (1988) 168 CLR 23 AT 33-34 applied;
R v. Wrigley C.A. 330/98 distinguishedR v. Cossor C.A. 206/99 distinguished
COUNSEL: Mr B Harrison for the applicant
Mr A Collins for the CrownSOLICITORS: Macrossan & Amiet for the applicant
Director of Public Prosecutions for the crown
This is an application for a stay of the indictment which alleges that on the 9th day of July 1995 at Mackay in the State of Queensland John Lionel Sichter unlawfully assaulted Jared William Parkinson and did him bodily harm.
It is convenient to attach to these reasons the submissions of the counsel for the applicant which sets out the chronology of the events. The chronology is only challenged in one particular, namely (m), but for the purposes of this application that is not an issue.
The offence occurred on 10 May 1995. The events which give rise to the incident are set out in the affidavit of the applicant in paragraphs 11 to 15:
“11.Prior to the incident occurring and as Christopher Felmingham and myself were walking back to my vehicle to go home I saw Parkinson and mentioned to Felmingham that he was the fellow that had pushed and confronted me at the nightclub. Felmingham suggested to me that Parkinson probably thought that I was someone else and that I should go and talk to him to see if I could clear things up with him so that didn’t have to go through the same thing each time we met when out. I agreed with Felmingham’s suggestion. Whilst Felmingham remained watching on the footpath I walked over to Parkinson and put my hand out to shake hands with him and at the same time said to Parkinson words to the effect “No hard feelings.” It was then that Parkinson punched me for no reason.
12.Following this incident I drove Christopher Felmingham back to the Sun Plaza Motel, Nebo Road, Mackay. Felmingham advised me that he was shocked by Parkinson’s actions. He said to me words to the effect “So much for my advice to you – the guy has king hit you.”
13.In the course of a further conversation with Christopher Felmingham at Christmas 1997 Felmingham asked me in words to the effect “Did you ever find out why Parkinson king hit you?”
14.Christopher Felmingham would have clearly seen what happened between Parkinson and myself from where he was standing on the footpath at the time of such incident.
15.From the conversations that I had with Christopher Felmingham I can say that he would have corroborated my version that Parkinson punched me first without any provocation from myself and that I then only acted in self defence.”
The witness, Christopher Felmingham, died on 7 August 1998. He was killed in a motor vehicle accident. There was no signed statement obtained from prior to his death. On 30 October 2000 the applicant was served with a notice to appear and, in fact, appeared in the Magistrates Court on 15 November 2000 on the subject charge.
What is perhaps the crucial aspect of this case is that both before and after this incident the applicant had been studying to become a chiropractor in Melbourne and, in fact, returned to practice in Sarina in 1996 and has practised there since, not far from the police station. In fact the applicant has treated police, I am informed.
The principles to be applied in a case of this nature have been set out clearly in two cases of the Court of Appeal, The Queen v. Wrigley, C.A. 330 of 1998; and the decision of The Queen v. Cossor C.A. 206 of 1999 at page 10.
The four relevant factors to which Chief Justice Mason referred in Jago v. District Court (NSW) (1998) 168 CLR 23 are at pages 33 to 34 are:
“The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial… At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed… will generally include such matters as the length of the delay, the reasons for the delay, the accused’s responsibility for asserting his rights, and of course, the prejudice suffered by the accused… In any event, a permanent stay should be ordered in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare…”
When one looks at those four factors in the present case, the delay in the present case has been approximately five years prior to the applicant being contacted with the summons. In relation to the reasons for the delay there are, in my view, no satisfactory reasons for the delay except through the fact that the files seem to be marked “solved” in July 1995 and very little happened thereafter for some years. The chronology shows those particular events which occurred, as far as the police were concerned and on 10 July 1996 the crime report was reactivated and events followed.
It is also noted that on 26 July 2000 the complainant withdrew his complaint as the statement could not be located, but subsequently, in fact the next day, complained to the district superintendent about his handling of the file and it was then the statement by him, the complainant, was retrieved. It cannot be said that the applicant is in any way responsible, unlike the accused in other cases who were aware of events against them but who failed to make inquiries.
The death of Mr Felmingham is, in my view, prejudicial to the accused. It is clear that he would have been an eye witness to the events and would have favoured the version of events given by the applicant which set up self-defence.
It was argued this morning that the provisions of Section 93B(2) of the Evidence Act would apply. That subsection provides:
“(2) The hearsay rule does not apply to evidence of the representation given by a person who saw, heard or otherwise perceived the representation, if the representation Wellington Street –
(a)made when or shortly after the asserted fact happened and in circumstances making it unlikely the representation is a fabrication; or
(b)made in circumstances making it highly probable the representation is reliable; or
(c)at the time it was made, against the interests of the person who made it.”
The fact that it would be the applicant as the accused who would be giving self-serving statements made by another person would be an important factor in deciding whether the evidence should be put before a jury. Views may differ on that, but even if the evidence were allowed to be put before a jury, the warning under Section 93C(2) of the Evidence Act would be applicable:
“(2) On request by a party, the court must, unless there are good reasons for not doing so –
(a) warn the jury the hearsay evidence may be unreliable; and
(b) inform the jury of matters that may cause the hearsay evidence to be unreliable; and
(c) warn the jury of the need for caution in deciding whether to accept the hearsay evidence and the weight to be given to it.”
That warning would detract from the weight of the evidence considerably and would in my view not remedy any prejudice which the applicant would suffer in a case of this nature.
A statement supporting the complaint was obtained from Tina Hunt on 14 August 2000, some five years after the event. That, of course, may be a factor which would detract from its reliability, but it is said by the Crown that it would reduce the risk of an innocent person being convicted. It may be a question of whether Ms Hunt’s memory after five years was accurate and how she presented as a witness. That does not detract from the proposition that a risk of injustice might occur if the applicant were deprived of having an eye witness which has supported his version being able to give evidence. Obviously, the death of his principal witness would, in my view, prevent him putting a case forward and is an irreversible prejudice.
If the applicant had been served when he returned to practice at Sarina in 1996, then a statement from Mr Felmingham may have been obtained prior to his death in 1998.
The case of The Queen v Cossor referred to is somewhat different, the witness was not able to be found at the time but it could not be shown whether that witness had seen anything of the accident.
Also, in The Queen v Wrigley which was a case of a violent assault on a female, the complainant’s evidence was not strongly challenged at trial and the accused did not give nor call evidence. The passage in relation to chances of acquittal which is relevant to the present case is at page 7, paragraph 12:
“It is at this point that the appellant encounters difficulty. There is no basis for a finding that the appellant’s chances of an acquittal were diminished by the absence of testimony from Theresa Jones or Charlie. It is of course possible that they would have corroborated the evidence of Ms Young. On her versions of events both of them witnessed a second assault, that in the lounge room, and one or both of them may have observed corroborative of the incident in the bedroom. There is nothing – there is no evidence from which it might be inferred that either missing witness could have said anything tending to exonerate the appellant.”
Quite the contrary in the present case: the complainant is said to have king-hit the appellant according to the observations of Mr Felmingham if he had been available to give that evidence.
It is no answer for the Crown to say that the accused can give that evidence as he would be his only witness. His chances of an acquittal, I find, would be diminished by the absence of the witness, Felmingham.
In applying these principles, I find that the indictment ought to be stayed. It is conceded by the Crown that no fault lies with the applicant in this case.
The order will be that the hearing of the indictment of the indictment presented against John Lionel Sichter that on the 9th day of July 1995 at Mackay in the State of Queensland whereby John Lionel Sichter unlawfully assaulted one Jared William Parkinson and thereby did him bodily harm be permanently stayed.
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