R v W, R T (Suppressed) No. DCCRM-99-1093, DCCRM-00-86

R v W, R T
[2000] SADC 51

Judge Herriman
Criminal

INTRODUCTION

The accused is a 56-year-old former schoolteacher. He is charged, on two separate informations, with 22 counts of various sexual offences, involving nine males and extending over the period between 1983 and 1994.
The ages of the alleged victims, at relevant times, ranged between 12 years and adulthood and each then was, or at some earlier time had been, a pupil at the school where the accused taught. In consequence of either or both of these factors, certain of the section 56 charges rely also upon section 57 of the Criminal Law Consolidation Act. To the extent that there are four charges of unlawful sexual intercourse, none are brought under section 49(5) of the Act. There is also one count of rape, although I was informed at the hearing that the prosecution intends to amend that charge to one of unlawful sexual intercourse.
It is pertinent to observe that, at relevant times, the accused and the complainants were part of the same small country community.
Some 84 counts had originally been charged on the Magistrates Court information, but at the committal the prosecution had tendered no evidence on many of them and these had been dismissed. Ultimately, the accused was committed for trial on 25 counts.
Further informations were then laid in this Court as follows:

(1)... in consequence of that committal, a District Court information dated 2 November 1998, which I will, for convenience, refer to as “the first information”, and on which those 25 counts were charged;

in February 1999, a further information (“the DPS information”) was laid, which, with some variations, appeared to repeat counts 12, 13 and 14 of the first information, all relating to a complainant “DPS”, added another count relating to that person, and then repeated count 25 of the first information, relating to one “SSW”. In all, the DPS information contained five counts. The first four relating to DPS have since been tried, but I am not aware of the fate of the fifth count;
on 16 December 1999, a further ex officio information was laid, which, with some variations, appeared to repeat counts 1 to 9 inclusive on the first information and added a further, tenth, count. That information relates to two brothers, complainants “MG” and “BG”, and is referred to hereafter as “the third information”.
The prosecution now proposes to proceed upon counts 10, 11 and 15 to 24 inclusive of the first information, involving seven alleged victims, and on the ten counts in the third information. The third information is set down for trial before me in July 2000, but as far as I am aware, the remaining counts on the first information are yet to be assigned a trial date.

THE APPLICATION

By an application filed on 8 March 2000, the accused has sought a permanent stay in respect of all “live” counts on the first information and all counts on the third information on grounds that the accused is unable to receive a fair trial in respect of them and that their prosecution will result in an abuse of process.
In support of this claim the accused relies upon the following factors, recited in his application:
“(i)..... the long delay in reporting ... (the relevant) ... allegations;
(ii)the age of so many of the allegations;
(iii). the lack of particularity with respect to so many of the counts;
(iv)the same difficulties, which arise concerning allegations, which are not the subject of charges, but, which the Crown may seek to lead as evidence at trial;
(v)... the irreparable unfairness, which these and other matters create to the Accused in properly defending these matters.”

The accused contends that it is unfair and oppressive that he should have to face those counts and that the prejudice he will suffer, should he have to do so, is incurable. I will refer in due course to the specific arguments of the accused, but the above shortly summarises his application.

PRELIMINARY ISSUE

At the commencement of the hearing before me, I expressed concern about whether I should adjudicate on the whole of the accused’s application. Whilst I considered I had jurisdiction to deal with the application generally and whilst I intended to rule upon the application in so far as it concerned the third information (as I was already assigned to try it), I had misgivings about dealing with the remaining relief sought and for these reasons:

(1)... I was not assigned to try the balance of the counts on the first information and it seemed to me that were I to refuse the accused’s application in respect of any of them, my determination would not constitute a final ruling in this court and the accused would be at liberty to renew that application before the trial judge assigned to hear those or any of those counts. That seemed to me to be undesirable, and potentially wasteful of court resources.

That concern became magnified, in this particular instance, because of the accused’s intimation (paragraph 9 of his application) that:
“Depending upon the Court’s ruling in relation to this application for a permanent stay, the Accused may seek to argue the question of severance in relation to all of the remaining counts on either of the Informations ...”

......... This foreshadowed the possibility that, depending upon any findings I were to make as to counts on the first information, there might be not one, but several further abuse applications based upon the same grounds as he proposed to argue before me.

In response, defence counsel urged me to adjudicate upon all matters in the application. For its part, the prosecution did not, at first, oppose that course, either, but at the commencement of the second day it announced it had reconsidered its position and it then urged me to refuse to deal with the accused’s application in so far as it concerned the remaining counts on the first information.
Because argument on the application, in so far as it related to the third information, still required some consideration of the statements and evidence of certain complainants and witnesses named in the first information, I elected to embark upon the hearing of the entire application, nonetheless reserving my position as to whether I would ultimately deal with the application as to the counts on the first information.
I will return to that matter in due course.

LEGAL ISSUES

Abuse of Process Generally

There was little dispute as to the principles guiding a court’s exercise of its power to stay proceedings for abuse of process. Both parties cited Jago v District Court (NSW) (1989) 168 CLR 23, a case which supports these general propositions:

(1)... a court has the inherent power to stay proceedings for abuse of process;

that power is a discretionary one, but is exercisable “only in exceptional cases” (per Gaudron J at 76);
it is exercisable not merely to prevent improper use of court processes, but “when the process is incapable of serving the purpose it is intended to serve” (per Brennan J at 47; see also Williams v Spautz (1992) 174 CLR 509 at 518).
the competing factors in its exercise include the public interest in seeing accused persons brought to trial, the need to maintain confidence in the administration of justice and the need to ensure that every person has a fair trial (see also Cooke v Purcell (1988) 36 A Crim R 425);
“... it is not possible to state exhaustively all the categories of abuse of process ...” (per Brennan J at 47);
a stay should only be granted where there is “a fundamental defect which goes to the root of the trial ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’” (per Mason CJ at 34; see also Barton v The Queen (1980) 147 CLR 75);
delay of itself will not constitute a ground for staying an action for abuse of process ... “There must be other factors which would render the continuation of the proceedings unfair or oppressive” (Jago, supra, and also R v Karounos (1995) 63 SASR 451 at 461);
the relevant factors which a court should consider in deciding whether a stay should be granted are:
“(i) the length of the delay;
(ii) reasons given by the prosecution to explain or justify the delay;
(iii).. the accused’s responsibility for and past attitude to the delay; and
(iv) proven or likely prejudice to the accused.
......... The fifth is the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime” (per Deane J, Jago at 60/61).
Accused’s counsel argued that a further factor relevant to that determination, albeit not referred to in Jago (supra), is the strength of the prosecution case. In support of that contention, he referred to Cooke v Purcell (supra), where (at 461) Clarke JA observed:
“If a prosecution case is demonstrably weak and excessive delay has occurred while the prosecution has sought to bolster its case, or to develop a tactical approach which it hoped might undermine the case of the accused, the weakness of the case would, in my respectful view, be a most relevant consideration ... it does not follow that it must inevitably be material in every case.”

Also, in Aitchison v DPP (1996) 90 A Crim R 448, Higgins J commented (at 449/50):

“The strength or otherwise of the Crown case is a relevant factor but to comment on its strength is not to suggest any diminution of the right of the applicant to be presumed innocent. It goes merely to the question whether the allegations against him are sufficiently supported by prima facie evidence so as to render them worthy of trial. A frivolous or tenuously supported allegation would more readily be stayed.”

Those cases clearly support that contention, I accept it and will have regard to it in my deliberations.
Here, accused’s counsel relied upon the age of the allegations, the absence of any early complaint and the resulting delay in charges being brought and then dealt with. He urged me to have particular regard to the notion of presumptive prejudice and, further, to what he contended was the vagueness or imprecision in the wording of the various counts and, indeed, the allegations which he says the prosecution will seek to rely upon as uncharged acts. Finally, he pointed to potential prejudice to the accused arising out of the repeal of section 76a of the Criminal Law Consolidation Act.
Whilst age and failure to complain are well understood concepts, the remaining matters warrant some discussion.

Presumptive Prejudice

There is little doubt that the law recognises presumptive prejudice as a relevant factor in this type of application. It seems inherent in the use of the expression “likely prejudice” in Jago (supra).
In Cooke v Purcell (supra) Clarke, JA commented (at 452):
“Because it is often very difficult, if not impossible, positively to prove actual prejudice resulting from lengthy delay the law also acts upon the basis of presumed prejudice. The existence of a lengthy delay itself leads to a presumption that some prejudice will have been occasioned to the accused and, possibly, the prosecutor.”

further, at 460:

“It must be recognised that the failure to accord to an accused a speedy trial must almost certainly result in, at least, some presumptive prejudice. Memories fade. Recollection is replaced by reconstruction which is in turn transformed into recollection.”

and, finally, at 463:

“... In a complex case involving gross delay it may be impossible for an accused to present evidence of any more than a minimal proportion of the prejudice which he will actually suffer as a result of the delay if the trial proceeds. That is why presumptive prejudice is so important. Of course its weight will vary with the circumstances although, broadly speaking, the longer the delay, the larger the number of witnesses and the greater the complexity, and likely length, of the trial the more significance will be accorded to presumed prejudice.”

The Particularity of the Charges

The sufficiency of the particulars relating to any single count is clearly a matter relevant to prejudice and, ultimately, the exercise of any discretion (cf DPP v His Honour Judge Lewis & Anor [1997] 1 VR 391).
Allied to it, so accused’s counsel contended, is the sufficiency of the particulars relating to uncharged acts upon which the prosecution might rely. I am less ready to make that connection and for these reasons:

(1)... As Tadgel JA observed in DPP v Lewis (supra), it cannot be assumed that evidence of the various uncharged acts, referred to in the materials before me, will necessarily be sought to be led by the prosecution or, even if it is, that it will be admitted by the trial judge. It is not my present role to adjudicate upon its admissibility, all the more so with respect to counts I am not assigned to try.

All I can conclude is that there is a possibility that some of the evidence might, after argument, be admitted, for much the same reasons as were speculated upon in DPP v Lewis (supra), namely, that it may go towards establishing a particular relationship or guilty passion or, ultimately, to credit.
If the uncharged acts are so poorly particularised as to render it unfair that the accused should be expected to respond to evidence of them at trial, then it can be anticipated that evidence of them would not be allowed to be led, anyway. Put another way, evidence of the alleged conduct should not lead to an abuse of process, because the same defects in its particularity will ensure it is not able to be led.
As to the sufficiency of the particulars relating to each count, the prosecution relied upon:
the wording of the charge itself;
the statements and committal evidence relating to it; and
its letter of particulars provided to the accused about 30 January 1998.
The most appropriate starting point for a discussion on this point is Johnson v Miller (1937) 59 CLR 467, where Latham CJ commented, at 479:
“The complaint must show upon its face that what is charged is an offence according to law, and it is sufficient if it sets forth the acts which are relied upon as constituting the offence with such a reference to time and place as identifies those acts.”

In the same case, Dixon J commented at 489/90:

“The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence ... There are more than one means by which the occurrence or transaction, the subject of the charge, may be identified and distinguished from other occurrences or transactions alleged to have occurred, equally capable of supporting the complaint.”

His Honour there went on to uphold the necessity for a prosecutor:

“... to elect among the instances or transactions he proposes to prove and to state definitely to the court which of them is to be treated as the subject of the complaint.”

Reference was also made to R v Pfitzner (1976) 15 SASR 171, R v B, unreported, SA CCA, Judgment No. [1999] SASC 403 and G v R, unreported, SA CCA, 1995, Judgment No. S5019. Those cases generally support the view that the critical function of particulars is to identify the act or occasion alleged in a manner sufficient to enable the defendant to properly address the allegation, albeit that in some cases the time at which it allegedly occurred cannot be precisely stated. On that topic, however, the court observed in R v S (1992) 58 SASR 523 at 526:

“Where it is impossible to identify the conduct which forms the basis of a conviction, the conviction is bad for uncertainty”.

In S v R (1989) 168 CLR 266, the prosecution had charged one act of carnal knowledge within each of three nearly consecutive years. The evidence led then disclosed a number of other similar uncharged acts occurring during each of those years, any one of which might have met the description alleged in respect of the count charged in that year.
The court there discussed the “latent ambiguity” of each count and the option, available to the prosecution but not exercised, of amending each count so as to identify the particular incident charged. It considered the accused was embarrassed by that ambiguity or uncertainty; indeed, Dawson J pertinently commented on the role of the court generally (at 274):
“The power of a court to impose the appropriate requirement in order to secure a fair trial and protect its process from abuse will ordinarily be either implied or inherent ...”

and he noted the:

“... obvious embarrassment to the applicant in having to defend himself in relation to an indeterminate number of occasions, unspecified in all but two instances, any one of which might, if it occurred in one of the relevant years, constitute one of the offences charged” (p.274)

and, further, at 275:

“The occasions upon which the offences alleged took place were unidentified and the applicant was, in effect, reduced to a general denial in pleading his defence. He was precluded from raising more specific and, therefore, more effective defences, such as the defence of alibi. Because the occasions on which he was alleged to have committed the offences charged were unspecified, he was unable to know how he might have answered them had they been specified. It is not to the point that the prosecution may have found it difficult or even impossible to make an election because of the generally unsatisfactory evidence of the complainant. An accused is not to be prejudiced in his defence by the inability of the prosecution to observe the rules of procedural fairness.”

That same defect, the court observed, made it difficult for the court to deal with the question of the admissibility of what would now be called “relationship evidence”.

Dawson J commented further (at 276):
“Moreover, the law requires that there be certainty as to the particular offence of which an accused is charged, if for no other reason than that he should, if charged with the same offence a second time, be able to plead autrefois convict or autrefois acquit.”

This latter was a point strongly emphasised by defence counsel in this case.

That case was considered in R v Lewis (supra), where the accused had been charged with a number of sexual offences in relation to his daughter, allegedly occurring over a period of six years. The charges had been brought some 20 to 25 years after the alleged events. The prosecution case relied on a course of conduct and representative counts were selected, each one being allegedly the first occasion of a particular series or type of offences.
At first instance, a permanent stay was granted on the basis that the accused had been denied procedural fairness because of the “latent ambiguity” in each count.
The prosecutor successfully sought judicial review of that decision, the Court of Appeal in Victoria holding (per Tadgel JA) at 394:
“In any case where it is sought to found a criminal charge on an incident in a series occurring over a period, there being neither a known date nor any unique physical feature to distinguish the incident from others in the series, there is an obvious difficulty in providing particulars. The difficulty is likely to be compounded when the period during which the series of incidents occurred is lengthy or long-past, or when the allegations are said to form a pattern of sexual abuse. S v R (reference cited) exemplified the problem, where convictions upon three unparticularised counts of incest were set aside.”

His Honour then went on to discuss the circumstances in S v R, which he found to be distinguishable. There, he noted, the prosecution had:

“declined to elect to proceed in reliance on any particular act or acts of intercourse. That was a vice which rendered each count, although strictly not duplex and not on its face ambiguous, latently ambiguous” (p.395).

His Honour went on to discuss the technique of charging a “first occasion” in order to provide “sufficient certainty” of the incident charged (p.398). Whilst not holding that that technique would always sufficiently identify the acts alleged, he was satisfied that in the case before him, the relevant charges achieved that aim. In concluding, he commented (p.402):
“Offences of the kind charged and the circumstances alleged in ... the presentment have come before the courts in recent years with disturbing regularity. It is of course in the public interest that allegations of such offences be brought to trial if a presentment can be satisfactorily formulated. But the formulation of charges in respect of sexual abuse alleged to have occurred long ago to a child, whose memory as an adult is necessarily vague about dates, presents considerable difficulty as a matter of criminal pleading. It is nevertheless desirable, again in the public interest, that the difficulty be faced and worked out rather than that the courts should walk away from it. If, having regard to the paucity of a complainant’s recollection, it is not possible fairly to formulate a charge, so be it. When, however, such a formulation is possible, as here, it is in the highest degree desirable that this court should, in what is in effect a test case, correct a misapprehension to the contrary. This, therefore, is, in my opinion, a case where a declaration to that effect should be made.”

In the event, it seems to me there is no real inconsistency between Johnson v Miller, S v R and R v Lewis (supra). I am satisfied that they support the propositions that:

(1)... “... under one charge to take evidence of a number of separate instances of the commission of the same offence because each will indifferently fit the complaint is to pursue a course contrary to law” (per Dixon J in Johnson v Miller, (supra) at 489);

should the prosecution attempt this, it is appropriate for defence counsel, and, indeed, the court, to require it to properly identify the particular occasion on which it relies;
if the prosecutor is unable to identify that occasion, then it may well be that a court should then intervene to prevent an abuse of process;
ultimately, whether the charge is ambiguous or latently ambiguous falls to be determined upon whether it “sets forth the acts which are relied upon as constituting the offence with such a reference to time and place as identifies those acts” (per Latham CJ in Johnson v Miller at 479).
Those, then, are the principles upon which I am satisfied I should proceed in considering this aspect of the application.

The Section 76a Question

The final matter pertinent to prejudice relates to the repealed section 76a of the Criminal Law Consolidation Act. That section read as follows:
“76a(1).... No information shall be laid for any offence specified in subsection (3) of this section more than three years after the commission of the offence ...”

The offences “specified” by that section effectively included the range of offences which are charged in this matter.

By amending Act No. 98 of 1985, which received assent on 1 December 1985, that section was repealed.
Counsel for the accused contended that the impact of that repeal was not immediately apparent; that whilst it had since been assumed that, effectively, it meant that all offences post-dating 1 December 1982 (a date three years prior to the amending provision) might be freely prosecuted, there was, indeed, no clear authority for that and it was arguable that the cut-off date was the date the repeal came into effect, namely, 1 December 1985.
As a consequence, I was asked to find that for the prosecution to proceed on sixteen of the counts before me constituted an abuse of process on the basis they were doomed to failure by virtue of section 76a: the earliest commencement dates particularised for each of these offences pre-dated 1 December 1985.
I was directed by both counsel to the case of R v Pinder (1989) 155 LSJS 65, which considered the relevant section and its repeal. There, an information had been laid by the prosecution on 1 July 1988 in respect of two counts of indecent assault which had allegedly occurred on or about 17 May 1985. On that date, section 76a of the Criminal Law Consolidation Act was clearly in force: the repeal only came into effect some six months afterwards.
The questions reserved for the Full Court’s determination were:

(1)... Was the trial judge correct in ruling that the laying of the information and proceeding upon it was not statute-barred in the circumstances of this case?

Does the Criminal Law Consolidation Act Amendment Act No. 98 of 1985 have any application to trials for offences committed before 1 December 1985?
The Full Court answered the first question in the affirmative. As to the second question, King CJ remarked at 67:
“The second question is far wider than is required for the decision of the present case and it need not be answered.”

The accused contended that in leaving this question unanswered, the Full Court left open, as a matter of law, the possibility that offences otherwise caught by section 76a and alleged to have occurred before 1 December 1985 might be statute-barred.

I am not persuaded by that reasoning. On a reading of the case, it is apparent that the Full Court did not seek to answer the second question because, having dealt with the first one, there simply was no need to do so; there is certainly no suggestion in the report that its answer to the second question might have been any different from its answer to the first.
In any event, in answering the first question, the Full Court there found that two charges, for offences which had occurred between 1 December 1982 and 1 December 1985, could proceed at law. The factual circumstances before the Full Court were thus similar to those presently before me. The answer to question one will therefore apply here with equal force.
Further, it is clear that by reason of section 16(1) of the Acts Interpretation Act, the amending Act 98 of 1985 could not be construed as authorising the laying of an information which would deprive a person of a right or privilege already acquired at the date of the repealing enactment. On 1 December 1985, the time limit applicable prior to the repeal had not yet expired for post‑1 December 1985 acts and, consequently, the accused had not then acquired a right to immunity from prosecution. I note in particular the remarks of King CJ at 67:
“I can see no basis in reason or justice for holding that the amending Act should not operate according to its natural tenor in respect of Informations laid after the commencement of that Act in respect of offences which are not already the subject of a bar at the time of the commencement of the amending Act. The alleged offender in such a case has, ex hypothesi, not acquired a legal immunity and there is no reason why this procedural provision should not apply to the procedure of laying an information after the commencement of the provision. This was the decision of the English Court of Criminal Appeal in R v Chandra Dharma (1905) 2 K.B. 335 and I think that that decision should be followed.” (The emphasis is mine.)
Put another way, I am satisfied, and find, that the effect of amending Act No. 98 of 1985 was to permit the prosecution, at any subsequent time, of the range of offences covered by section 76a, in the event they occurred on or after 1 December 1982.

THE ACCUSED’S CASE ON GENERAL MATTERS

The accused pointed to the criteria relevant to an application of this kind established in the cases of Jago and Cooke v Purcell (supra) and contended:
The length of the delay

Save for one count alleged to have occurred in 1994, the remaining allegations relate to a period between 1983 and 1989. The accused had not been confronted with any of those allegations until 1997 and it is now three years since then. There has thus been a substantial delay.
As I have noted, delay of itself will not generally amount to abuse of process, but, particularly given its length in this case, it is a relevant factor which, along with other matters, I must keep in mind.

Reasons given by the prosecution to explain or justify the delay

It is apparent from the documentary materials that the prosecution was not aware of any of the allegations upon which any counts were based until the latter part of 1997. It pointed to the extensive investigations it then undertook relating to the numerous complaints made, to the already successful prosecution of the accused on three severed counts, to the further voluntary severance it has undertaken in respect of the third information and to the trial listing of the third information in July 2000, all in justification for the time elapsed since 1997.
Otherwise, it pointed out, in so far as it was pertinent to this factor, that it was not unusual for there to be a substantial delay in reporting allegations of sexual assault and referred to comment about this in Davis (supra) at page 158 and also to the cases of Lewis (supra), R v Birdsall (Butterworths Unreported Judgments, CCA NSW 60616/96, 3/3/97) and R v Dodds & Harris; Ex parte Attorney-General of Queensland (Butterworths Unreported Judgments, CCA Qld, 3033/96, 18/10/96).
For his part, the accused was generally critical of the lapse of time since 1997 and pointed to the consequences in terms of delay of the prosecution decision to sever various of the counts in the manner I have already described. As to the latter point, in his written submissions, accused’s counsel argued “In bringing charges concerning ... (DS) ... first, the Crown have contributed to the delay in the hearing of these charges. The Crown could have chosen to have proceeded with these charges first.”
I have not been able to make very much of these criticisms of prosecutorial delay, and for these reasons:
(a).... The original investigation must clearly have been a very substantial one and it would appear that in excess of 100 witnesses were at first interviewed. Even allowing that a number of those persons ceased to be important after the committal hearing, some 70 witnesses are named on the back of the first information.
(b)The original Magistrates Court information was filed on 26 November 1997 and it would appear that the committal hearing began on 25 February 1998. The prosecution might be criticised for the circumstances in which, in April 1998, it advised the accused of the withdrawal of some 55 of the original 84 counts, but any resulting delay up to that time cannot have been substantial. Thereafter, the accused obtained leave to cross‑examine a number of prosecution witnesses and the committal appears to have then continued through to completion in September 1998. No specific criticism has been advanced as to that lapse of time.
The first information was then filed on 2 November 1998, but on 4 February 1999 the DPS information was filed, severing certain counts from it. The DPS information was tried in the Supreme Court in November 1999. I am not aware of the reasons for delay in the commencement of that trial, but nor did the accused make any specific criticism of it.
Likewise, the third information is listed for trial in July of this year and apart from the criticism I have quoted above, I am not aware of any other specific criticism made by the accused about that listing time.
(c).... Whilst the accused has sought to criticise the decisions by the Crown to sever the counts contained in the DPS and third informations, apart from the obvious consequence that sequential hearings will lengthen the time for disposal of all matters, it is not really apparent what specific prejudice has resulted. For its part, the prosecution says it apprehended that severance applications would be made in respect of the counts in the first information and, indeed, there might have been some merit in that apprehension, given the intimation contained in paragraph 9 of the accused’s application. Further, I note that the accused does not appear to have ever made any application to have the separate informations joined or heard together.
(d)No evidence was placed before me of any “active protests” (cf Jago at 62) as to prosecutorial delay. Perhaps the same has occurred, but evidence of it was not placed before me.
(e).... The accused has not sought to identify any specific prejudice resulting from prosecutorial delay.
(f)The accused’s contention that the Crown has contributed to delay by filing the separate DPS information must be accepted, but for the accused to then say that the third information should have been tried first, is a hollow point. The accused might, on the same footing, have later complained about prosecutorial delay in the DPS matter. This point really goes to the appropriateness of severance and to the accused’s response to steps taken by the prosecutor to sever various counts.

The accused’s responsibility for and past attitude to the delay

In the context of the accused’s pleas entered in connection with these matters, it cannot fairly be said that he has in any way been responsible for the delay in their prosecution since 1997.

Proven or likely prejudice to the accused

Proven or likely prejudice, coupled with the asserted weakness of the prosecution cases, are the principal grounds upon which the accused relies in this application. With respect to the former, he has not adduced evidence of specific prejudice, but has relied on presumptive prejudice, which he says arises out of the following matters:
(i).... Prejudice arising from delay. In this respect, he points to the likely impact of delay upon the complainants’ memories of alleged events. Further, he contends that the same consideration has affected his own ability to recall potentially exculpatory matters and to seek out witnesses in support.
Generally, on this topic, his counsel referred to conflicts between the statements of various witnesses and the evidence given by them at the committal hearing, and to the several amendments which have been made to the charges relating to the time spans within which events allegedly occurred - factors, he said, which all indicated problems of recollection afflicting witnesses generally and his client in particular.
There is, of course, merit in this contention. Common sense compels a conclusion that the age of the allegations is a matter affecting the ability of witnesses and the accused to recall events. That factor alone is not sufficient to lead to a finding that any prosecution will lead to an abuse of process; indeed, similar difficulties were present in many of the cases discussed above, and also in those cases where specific jury directions as to the consequences of delay have been discussed. In terms of its capacity to bring about an unfair trial, proven or likely prejudice must be viewed in the context of each case.
(ii)Lack of particularity. Another ground of prejudice relied upon by the accused was the imprecision inherent in the wording of various counts in the two informations under consideration. That imprecision, his counsel said, meant that in some cases the alleged act could not be placed within a time-frame of less than three years, in many others it was several months, and in no case was it less than one month. He contended that there was a lack of other material identifying the time, place and circumstances of each alleged act and that that lack of particularity not only prevented his client from addressing the alleged circumstances of each particular count, but, if it were permitted to be led at trial, it would put at risk the very circumstance discussed by Dawson J in S v R at 276 (supra).
......... Clearly, the latter is a valid submission, but it needs to be considered in the context of each particular count. It must further be recognised that the time at which an alleged act is said to have occurred is only one of the factors capable of identifying the occasion sufficiently for the purposes of an accused’s defence. In some cases, the place at which it allegedly occurred or the circumstances allegedly attending it may better serve to identify the occasion.
(iii)Section 76a. I have already discussed and rejected the contention that the repeal of section 76a of the Criminal Law Consolidation Act operated to prevent the prosecution from proceeding on any count allegedly occurring between 1 December 1982 and 1 December 1985.
The further point argued by the accused was that, even so, there was evidence in the committal hearing from which it emerged that some witnesses could not deny the possibility that certain of the alleged conduct on which particular counts were based, occurred prior to 1 December 1982. Thus, he contended, it would be unfair to then oblige the accused to face those counts which, potentially, were out of time.
I will comment on that evidence later with particular reference to the counts in question, but I should say that I have difficulty with the general proposition, anyway. It seems to me it would not be appropriate at the committal stage to dismiss a matter because of such evidence, nor, it seems to me, is it appropriate for a judge hearing an abuse application to conclude that the existence of a possible defence necessarily implies that the maintenance of the proceedings will result in unfair prejudice to the accused. The appropriate time for consideration of such a contention is at the close of the prosecution case and not at this time.
Defence criticism on this ground may go to the question of the strength of the prosecution case, but that is another matter.
(iv)Uncharged acts. I have already adverted to the difficulty that I face in considering the accused’s criticism that evidence in the statements and the committal transcript of uncharged acts will necessarily result in prejudice to him. In the first place, I am not in a position to know which of such acts will ultimately be relied upon by the prosecution. Secondly, to the extent that there might be a challenge to any such evidence sought to be led, it is not appropriate for me to evaluate the likelihood of its admission, more so in circumstances where I am not assigned to try the matter. To the extent that the accused wishes to ventilate any issue of unfairness relating to these matters, it seems to me that the only appropriate adjudicator is the trial judge and then after a formal application and a full voir dire hearing.

The public interest in the disposition of charges of serious offences
There can be no doubt that the offences here alleged are serious ones and I am persuaded that the balance here favours the prosecution case. Similar considerations applied in DPP v Lewis (supra). Tadgell J commented, as I have already quoted, at p.402.
Such considerations did not apply in the case of Aitchison (supra), where the accused had already been convicted on several other similar counts and it was thought unlikely that further convictions would result in a more substantial custodial sentence.
Weakness of prosecution case

In this respect, the accused pointed to weaknesses which attended the prosecution case on almost every count. In particular, he argued:
(i).... in all but one case, there is no evidence of any recent complaint by any of the alleged victims - clearly, on all the evidence, that is so;
(ii)in every case, complainant statements were obtained as a result of an approach to the complainant by the police, rather than vice versa - that contention is supported by the evidence;
(iii).. that, because of the way in which interviews were conducted, and because of the close-knit community from which complaints emerged, there was a real risk of cross-contamination of evidence. On this point, I am unable to make any finding supportive of the accused: there is simply no good evidence of cross-contamination and an argument in these terms can only be speculative;
(iv)with respect to every count, there is a lack of corroboration of the specific complaint - that is a matter on which the prosecution took issue and which needs to be considered in the context of each matter;
(v).... that the committal evidence discloses frailties in the evidence of many complainants which should not be overlooked - again, this matter needs to be considered on a charge-by-charge basis;
(vi)that the particulars relating to many of the counts had been changed, in some instances markedly, in connection with the timing of the particular incident - the prosecution must concede that, but its implications need to be considered.

The defence contended that each particular count was beset with some or all of the above weaknesses and they were relevant in assessing the strength of the prosecution case on that count. Save as to 6(iii), it is not possible to deal with this contention in a general way and I must consider each count individually.

THE PROSECUTION’S RESPONSE ON GENERAL MATTERS

In response, the prosecution made these general points:

(1)... The First Information - that whilst I had the power to deal with the abuse application in so far as it concerned the counts on the first information, I should not exercise it because any ruling I make will not be of a final or binding nature; that the prospect of a multiplicity of further abuse applications is a real one, given the accused’s intimation that severance applications may be made.

Delay - Explanation - Prejudice - as to delay simpliciter, it referred to Davis (supra), at page 158:
“It is commonplace for there to be a substantial delay in the reporting of alleged sexual assaults, especially where the complainant is a child ... It seems that many sexual assault victims are unable to voice their experience for a very long time. To adopt a rule that delay simpliciter justifies a stay of proceedings, would be to exclude many offences, particularly against children, from the sanctions of the criminal law.”
It contended that the reasons already discussed otherwise adequately explained the lapse of time between 1997 and the present. It said that it had sought to sever the DPS information and the third information from the first information in anticipation of severance otherwise being sought by the accused. It argued that it had proceeded properly in first trying the DPS information and that a conviction had resulted from that trial. Otherwise, it pointed again to paragraph 9 of the accused’s application and the possibility of further severance applications.
As to prejudice, it pointed to the responsibility of the trial judge to give appropriate directions to a jury about the impact of delay upon the complainant’s evidence and, as well, on the accused’s capacity to properly defend himself.
Particularity and Uncharged Acts - as to the allegations of lack of particularity, it contended:
(i).... the separate informations had to be read along with its letter of particulars dated 10 January 1998, which latter document supplemented the detail provided with respect to each count;
(ii)that in considering the sufficiency of the particulars provided with respect to each count, it was necessary to look not merely at the alleged time of the event, but at the wording of the count, the particulars of place and circumstance disclosed in it, the statements of the complainants, their evidence (where appropriate) in the committal proceedings and to the statements and evidence of other witnesses.
It argued that, in connection with any particular count, the combination of all that material was sufficient to properly identify to the accused, the acts relied upon as constituting the offence;
(iii)that the earliest date after which offences might be charged is 1 December 1982 and that in respect of every count, there was evidence establishing, at the least, a case to answer that it occurred after 1 December 1982;
(iv)... it further argued that in so far as there were numerous uncharged acts referred to in the materials before me, each was adequately identified by reference to time, place and circumstance, and that along with the statements and evidence, there was sufficient material enabling the accused to identify it.

(4)... Weakness of Prosecution Case - as to the asserted weaknesses in its case with respect to each count, it responded generally by saying:
(i).... there was corroboration with respect to the circumstances surrounding many of the counts, albeit that that corroboration did not extend to the commission of the impugned act itself;
(ii)there was no evidence of cross-contamination in the evidence of different complainants - I have already dealt with this;
(iii).. that the changes which have been made to the particulars of various counts have not resulted from an uncertainty or weakness, but have been the result of further enquiry or evidence emerging as the investigation evolved;
(iv)that conflicts between the statements or evidence of various witnesses are matters to be resolved at trial.

DISCUSSION AND FINDINGS

The Abuse Application with respect to the Counts in the First Information.

As I have said, I elected to hear the accused’s application with respect to the counts in the first information, notwithstanding my expressed reservations. I did that because I required to be satisfied about the appropriateness of my making a ruling on those counts and, in any event, because, in determining the application with respect to the counts in the third information, it was necessary to have regard to certain of the evidence which also dealt with the remaining counts.
In the end, I have determined that I will not rule on the abuse application in so far as it concerns counts other than those charged in the third information. I am assigned to try the third information only, and will rule on the abuse application relating to it. I am not assigned to try the remaining counts, hence any adverse ruling that I might make in respect of them would not have the legal or practical effect of a final ruling in this court. The accused has already signalled the possibility of severance applications being made in respect of those remaining counts and the prospect of there being a further abuse application in this court based on the same grounds (indeed, of several such applications), is sufficient to persuade me that I should not now rule with respect to the first.
The accused has apparently chosen to defer any decision as to severance pending the outcome of this application, but it seems to me that the more appropriate course was for him to have all severance issues first determined so that each abuse application could be determined finally by the trial judge assigned to it. I do not suggest that that course should always be adopted in matters of this kind - there may, in some cases, be an overwhelming general abuse question which would warrant applications on several informations being heard together - but in the circumstances of these particular counts, I consider each ultimate information should be separately considered.
In so far as the relief sought in paragraph 2 of the accused’s application is concerned, I will simply adjourn that application sine die, with liberty to the accused to relist it as and when he may be advised. I thus turn my attention to paragraph 1 of the application, that seeking orders that the counts comprised in the third information be permanently stayed on the grounds of abuse of process.

The Third Information

I will consider in turn each of the counts on the third information, but against the background of my observations on the general issues discussed above.

Count 1 - Complainant MG

This count relates to an alleged indecent assault at a shack at Punyelroo, between January and September 1985, when the complainant and his two brothers B & S allegedly went there with the accused.
The accused pointed to the asserted age of the complaint at the relevant time (15 years) and to the possibility, on the complainant’s committal evidence, that the alleged incident might have occurred as early as in the year 1982 (and, pertinently, before 1 December 1982). He was critical of the wording of the charge and the fact that the range of dates in 1985 during which the conduct is alleged to have occurred had been changed on two occasions, and he pointed to the lack of any corroboration at all, particularly from the complainant’s brothers, who allegedly were sleeping in the shack at the time the alleged act occurred. The accused referred to deficiencies in the complainant’s memory of certain events relating to that camping trip, including as to the sleeping arrangements, and to the complainant’s awareness, when first interviewed by police, that other people had made certain allegations against the accused.
He pointed to the fact that, notwithstanding the complainant’s allegations as to what the accused had done on that camp, the complainant had later gone on other camps with the accused, on as many as three occasions.
He identified five further allegations which might be sought to be led by the prosecution as uncharged acts and which could be criticised for the same reasons I have set out above. Finally, he pointed to the possible defence (partially supported by the complainant’s own evidence) that the accused was asleep at the time he was purportedly carrying out the actions which led to the charge.
In response, the prosecutor contended there was ample evidence corroborating matters peripheral to the alleged act itself. She referred to the transcript of the complainant’s re‑examination at the committal hearing and to the evidence of other witnesses, including the complainant’s mother, which tended to corroborate that a shack visit had probably occurred in 1985, and certainly after 1982, and that the complainant had taken part in it.
As to the charge itself, I am satisfied that it is particularised sufficiently to enable the accused to properly direct his mind to an alleged occasion. True it is that the time period within which events are alleged to have occurred extends over eight months, but there are particular aspects of the charge which, I am satisfied, serve to identify it and its particular circumstances. Those features include the fact that it occurred on a specific excursion to a shack belonging to another teacher, a Mr P, on the River Murray at Punyelroo. Further, the particulars and evidence disclose the assertion that the complainant’s brothers were the other persons who went on the trip. Finally, there is the description of the accused’s alleged conduct and the fact that it is identified as the first of a series of five alleged acts occurring during that one night.
It follows, as well, from this that I am satisfied that the “uncharged acts” relating to this event are sufficiently particularised, but this does not amount to any determination as to the admissibility of evidence relating to them.
As to the strength of the prosecution case and the criticisms made of it by the accused, I am not satisfied it is so weak as not to be “worthy of trial” (Aitchison, supra). I otherwise take account of the obvious delay, prejudice likely to have resulted from it and the absence of any complaint.
Having had regard to the above considerations, to all the matters put to me and to the above legal principles, I find I am not satisfied that the abuse application with respect to this count is made out. The accused can receive a fair trial before a jury properly instructed.

Count 2 - Complainant MG

This count concerns an alleged indecent assault at Rapid Bay in December 1989, when the accused, the complainant and the complainant’s brother BG went there on a fishing trip. It shares some common features with the first count - it was old, allegedly nine to ten years old, when first reported upon; it was not the subject of a specific complaint by the alleged victim; and, again, it was the police who first approached him at about the same time as they spoke to his brother.
Accused’s counsel pointed to alterations in the particulars and general uncertainty in the complainant’s evidence as to which year it occurred. The relevant events, too, were uncorroborated, so the defence said.
For its part, the prosecution said that imprecision as to the actual date of the incident was unimportant because its place and circumstances were sufficiently particularised, anyway: that the accused had gone there with the complainant and his brother on a camping trip, that they had stayed in the same tent and that at some point the accused’s car had broken down.
The prosecution then pointed to corroboration of the complainant’s evidence, in particular:

(1)... corroboration as to peripheral matters by his brother BG, who was on the same trip (ie as to the trip, sleeping arrangements and other matters);

that this particular allegation was strongly corroborated by the statements made by the accused himself in his record of interview. In that interview, at page 15 and following, the accused prima facie admitted to indecently assaulting MG in 1989 or 1990 in a tent at Rapid Bay when he took the complainant and his brother BG there on a fishing trip. He spoke of similar sleeping arrangements and mentioned the fact that his car had broken down. He also stated that he indecently assaulted each of the brothers separately.
That such a statement can be corroborative is affirmed in the case of R v Arundell [1999] 2 VR 228.
Accused’s counsel intimated that the circumstances in which that interview took place would be challenged, but it is not for me to adjudicate upon that at this time. Presently, it forms part of the evidence which I am called upon to consider in the context of the application and I treat it as strongly corroborative.
I take account of the general matters of delay, prejudice and complaint already discussed, but, having regard to the above considerations, the statements and evidence, I am not satisfied the accused’s application is made out with respect to this count and I dismiss it.

Count 3 - Complainant BG

This count concerns BG, the brother of MG, and an alleged incident at a sleep-over at the school between September and October 1983.
The accused was again critical of delay in reporting the allegation to the police and of the circumstances in which the police approached and obtained the complainant’s statement. His counsel pointed to the age of the allegation (it was 14 years old at the time of the police interview) and to the imprecision in wording of the charge. Whilst it identified an incident which allegedly took place during a sleep-over at the school, the complainant had himself acknowledged that such sleep-overs were quite common and that he was unable to identify other children who were then present, nor the name of the female teacher who allegedly accompanied them. Further, the evidence of the complainant left open the possibility that the alleged incident occurred at a time which pre‑dated December 1982.
In response, the prosecution referred to other evidence in the committal hearing, in particular school reports which, it said, corroborated its assertion that the relevant incident occurred in the year 1983.
The statements and evidence of BG disclose that he has had some difficulty in recalling precisely when the alleged incident occurred. Against that, however, there is a measure of corroboration for the claim, made in his original statement, that it occurred in 1983. This is found not merely in the school magazine tendered, but in the complainant’s recollection that the incident occurred a year or so before his parents’ divorce, which was shown to have been in 1985. Again, there is no specific corroboration of the alleged conduct, but there is corroboration of the claim that there was such a sleep‑over at the school and that the complainant likely attended it.
I am not satisfied that the prosecution of this count would amount to an abuse of process. There is sufficient material identifying the alleged incident by approximate time and a specific place and circumstance. There is some corroboration of the sleep‑over having taken place, the case is not so weak as to justify intervention, and it seems to me that it will not result in any unfairness to the accused if a jury, properly instructed and warned, is called upon to try it.

Count 4 - Complainant BG

This count purportedly relates to the same occasion as is identified by MG in count 1.
I have already discussed the basis of the accused’s application in respect of count 1 and the prosecution’s response. The same criticism and the same responses are appropriate in respect of this count. I see no reason to repeat my discussion and I find against the accused in respect of his application to dismiss this count as an abuse of process.

Count 5 - Complainant BG

This relates to an alleged indecent assault on a fishing trip at Devon Downs between January and March 1985.
On the evidence of the complainant, three trips to that destination took place and he was indecently assaulted on each of them. The prosecution case is founded upon conduct of the accused said to have occurred on the first such trip.
In addition to the alleged age of the incident, the absence of a complaint and the general matters of objection to which I have referred above, the accused here argued that the complainant had been shown, in the committal, to have been unable to identify when the alleged trip to Devon Downs had occurred. He said this was critical because, on all the evidence, there were three such trips and his conduct on each was said to have been similar. That uncertainty, he said, was further aggravated by the alleged time-span over which the incident allegedly occurred (15 months) and by the absence of any relevant corroboration, albeit that MG was said to have been present in the tent when the alleged conduct occurred.
In response, the prosecution pointed to corroboration in the statement of MG, of a trip (albeit a single trip) to Devon Downs which occurred some three months after a fishing trip to Swan Reach, the latter itself being (so MG said) within “a couple” of months of the alleged Punyelroo incident. It also pointed to corroboration by MG of sleeping arrangements and consumption of alcohol on that trip. BG’s own statement identified the relevant trip as having taken place within a few months of the trip to Punyelroo.
In his original statement to the police, BG had given a specific description of an incident which he said occurred on the first of the three trips he, the accused and his brother MG had taken to Devon Downs. He had then commented:
“The three times I went to Devon Downs it was always just me ... (MG and the accused) ... . Those three occasions were all pretty much the same, with him giving us alcohol, beer and port and touching me during the course of the night.”

He had then gone on to describe, in some detail, conduct of the accused on another of those trips. It was similar, but not identical, to that alleged to have occurred on the first occasion, but he had not then said whether that conduct occurred on the second or third trip. He had further stated that the accused had taken him and his brother “camping quite often from 1985 onwards, almost every weekend he wasn’t busy”.

When cross-examined, the complainant had said he was unsure whether the specific incident, described in his original statement as the first sexual contact at Devon Downs, had in fact occurred on the first trip there. He had further said he was not sure whether the other episode, which he had described in some detail in his statement, had occurred before or after the first claimed contact. He acknowledged his recollection about those events was not very good. Finally, he had not been able to identify the dates of those three trips with any degree of precision.
In those circumstances, it appears that the accused is being called upon to answer a charge relating to the first alleged trip which, on the complainant’s own account, might comprise either:

(1)... the conduct originally described by BG as having occurred on the first Devon Downs trip; or

the similar conduct, described in some detail in the complainant’s statement as having occurred on another trip to Devon Downs; or
conduct that was “pretty much the same” as either (1) or (2), with the accused providing alcohol and “touching me during the course of the night”.
In short, the complainant has described similar conduct having occurred on each of three separate occasions, each such incident potentially meeting the wording of the charge, yet he has been unable to say precisely when each incident occurred, nor on which of the three occasions, the two incidents he has described in detail, occurred.
I consider it is unfair that the accused should have to face this charge, and for much the same reasons as were adverted to in Johnson v Miller (supra) at page 489:
“In my opinion (the prosecutor) clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence.” (The emphasis is mine.)

Notwithstanding the fact that the prosecution has here opted to rely upon the incident described by the complainant in his statement having occurred on the first trip, the uncertainties arising from the complainant’s evidence at the committal, when considered along with his claim that the accused’s conduct of “touching” was similar on all three occasions, deprives the accused of that very “entitlement” referred to in the extract.

Further, it creates the risk referred to in S v R (supra). I refer, in particular, to the passage quoted from pages 274‑5 of that report. If this count were heard and determined, difficult questions of autrefois convict and autrefois acquit would certainly arise in respect of any charges subsequently brought with respect to either of the other visits to Devon Downs.

In short, I do not consider that it is sufficient for the prosecutor to rely on “a first occurrence” allegation in circumstances where the conduct on all three occasions was said to be similar and where the extent of that allegation might, on the evidence, amount to no more than a claim that the accused “touched” the complainant.
I consider in this instance that the accused’s application should succeed and that this count should be permanently stayed.

Count 6 - Complainant BG

This count relates to an alleged camping trip to Swan Reach with the complainant and his brother between January 1985 and December 1986.
Accused’s counsel pointed to lack of particularity as to the timing of that trip and there may well be some discrepancies on the evidence between the time at which it was fixed by the complainant and by his brother SG. Having said that, however, there is a measure of corroboration in the statement of the latter which refers to a camp on private property at Swan Reach when the two of them went with the accused and he allegedly supplied alcohol. It appears to me there is sufficient identification of the place and circumstances relating to that offence, albeit that its timing is set within a two-year period.
I am not satisfied that the prosecution of this count would amount to an abuse of process. The evidence is not so weak as to justify intervention, and it seems to me that it will not result in any unfairness to the accused if a jury, properly instructed and warned, is called upon to try it.

Count 7 - Complainant BG

This count relates to an alleged trip to Blanchetown between May and December 1997 and involving the accused and several other boys. The accused was critical of the initial failure of the complainant to list the names of those other boys and then his later inability to identify them all. He suggested that this development may have involved some reconstruction. As well, he referred to the general matters relating to delay, corroboration and complaint.
For its part, the prosecution argued there was ample corroboration as to the occurrence of that trip and it was to be found in the evidence of the caravan park proprietor and of at least three other boys who went on it. Further, there was corroboration from the other boys of their undressing and being painted by the accused as Aborigines.
I am not satisfied that the prosecution of this count would amount to an abuse of process. There is sufficient material identifying the alleged incident with a time, place and circumstance. There is some corroboration of the trip having taken place, the case is not so weak as to justify intervention, and it seems to me that it will not result in any unfairness to the accused if a jury, properly instructed and warned, is called upon to try it.

Count 8 - Complainant BG

This count relates to an alleged incident at Maslin Beach during 1988 when BG was in Year 11 at school.
The complainant’s account is that he had nowhere to stay during a proposed school excursion to Adelaide, whereas other children appeared to have friends or relatives to board with. He says the accused invited him to camp with him, that they stayed in several caravan parks around the Adelaide area, but that on the Wednesday night of the excursion, the accused took him to Maslin Beach caravan park, where the alleged incident occurred.
Accused’s counsel pointed to the lack of corroboration, the uncertainty as to time and the absence of evidence from any other teachers or the names of other students who went on this excursion.
For its part, the prosecution said the excursion was clearly identified as one to Adelaide and, in the circumstances of the movement of the accused and the complainant from caravan park to caravan park over the period of that excursion, it was not a matter where the complainant’s accommodation would likely be corroborated by other teachers or students.
It contended that the occasion was otherwise adequately particularised in terms of the school excursion, the caravan park where the incident occurred and the alleged conduct of the accused. It further pointed to the defence cross-examination of the complainant at the committal, when it was squarely put to him that no such visit to Maslin Beach had ever occurred. The prosecution contended that this implied the accused was clearly able to focus his intention on the alleged circumstances of the complaint, albeit that he denied them.
Whilst in respect of this charge there is no corroboration from any other person as to the presence of the accused and the complainant at Maslin Beach Caravan Park, that is not fatal. It may go to the strength of the prosecution case, but otherwise the circumstances of the allegation are, in my view, sufficient to put the accused on proper notice of the case he has to meet.
I am not persuaded that to allow this count to proceed, with proper jury directions, would result in the accused having an unfair trial and the accused’s application in respect of it, is thus refused.

Count 9 - Complainant BG

This count relates to the same trip identified in count 2, when the complainant allegedly accompanied his brother MG to Rapid Bay. For the same reasons as accorded in dismissing the application in respect of that count, I dismiss the application.

Count 10 - Complainant BG

This count relates to an allegation of more recent conduct than those previously reviewed. The incident has been identified by reference to a party at the place of an acquaintance in the town. The accused contended that there is no corroboration whatsoever concerning his alleged conduct, but the prosecution contended otherwise, pointing to the statement of a witness who allegedly saw the accused and the complainant in close proximity to each other on the evening alleged.
Because of its comparative recency, that count does not suffer from some of the general criticisms made of the other counts and I am not satisfied that the accused has established that he cannot receive a fair trial in respect of it. The application in respect of that count is also refused.

SUMMARY AND ORDERS

As to paragraph 1 of the application, being the counts on the third information, the application is upheld with respect to count 5, but is otherwise dismissed.

100 Otherwise, for reasons already discussed, I am not prepared to rule on paragraph 2 of the application, in so far as it concerns the remaining counts on the first information, and I adjourn that part of the application sine die.

Actions

Download as PDF Download as Word Document

Citations

R v W, R T (Suppressed) No. DCCRM-99-1093, DCCRM-00-86 [2000] SADC 51

Cases Citing This Decision

0

Cases Cited

6

Statutory Material Cited

0

Connellan v Murphy [2017] VSCA 116

Williams v Spautz [1992] HCA 34

Commonwealth Life Assurance Society Ltd v Smith [1938] HCA 2

[2000] SADC 51

10 May 2000