The King v Yovanovic

[2024] NTCCA 3

CITATION:The King v Yovanovic [2024] NTCCA 3

PARTIES:THE KING

v

YOVANOVIC, Danny

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:No. CA 8 of 2023 (22129564 & 22126844)

DELIVERED:  29 February 2024

HEARING DATE:  29 February 2024

JUDGMENT OF:  Grant CJ, Brownhill & Burns JJ

REPRESENTATION:

Counsel:

Appellant:L Babb SC (Director of Public Prosecutions) with T Gooley

Respondent:  R Mathur SC with BML Le Comte

Solicitors:

Appellant:Office of the Director of Public Prosecutions

Respondent:  Northern Territory Legal Aid Commission

Judgment category classification:    C

Number of pages:  11

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Kingv Yovanovic [2024] NTCCA 3

No. CA 8 of 2023 (22129564 & 22126844)

BETWEEN:

THE KING
  Appellant

AND:

DANNY YOVANOVIC

Respondent

CORAM:    GRANT CJ, BROWNHILL & BURNS JJ

REASONS FOR DECISION

(Delivered ex tempore on 29 February 2024)

THE COURT:

1. This is an appeal against an order permanently staying criminal proceedings against the respondent in the exercise of the court’s inherent jurisdiction.  Section 414(1)(e) of the Criminal Code 1983 (NT) provides an avenue of appeal from that determination.  This Court has power under that provision either to dismiss the appeal or to set aside the stay order and direct that the proceedings continue.  The sole ground of appeal is that the trial judge erred in ordering a permanent stay of proceedings.

2. The respondent was charged by indictment dated 4 November 2022 with the commission of 16 offences against two separate complainants. 

3. In relation to the first complainant, the respondent was charged with one count of exposing a child to an indecent film (count 1), and one count of performing an act of gross indecency on a child without consent (count 2).  The indictment pleaded that those offences took place at some time during the course of 2008.

4. In relation to the second complainant, the respondent was charged with seven counts of performing an act of gross indecency without consent (counts 3, 4, 5, 6, 10, 12 and 16), and seven counts of sexual intercourse without consent (counts 7, 8, 9, 11, 13, 14 and 15).  The indictment pleaded that those offences took place at some time between 1 December 2013 and 30 June 2015.

5. On 21 June 2023, the judge at first instance ordered a permanent stay of proceedings of those counts charging offences against the first complainant: see Yovanovic v The King [2023] NTSC 53. The basis for the stay was said to be that the respondent could not be given a fair trial due to the fact that a child forensic interview between the first complainant and police which was conducted in 2008 relatively shortly after the incidents in question, and which was likely to contain exculpatory material, was missing and could not be found.
   No application or order was made in relation to those counts charging offences against the second complainant.

6. The appellant submits that the determination made by the judge at first instance was evaluative rather than discretionary in nature, and so attracts the application of the ‘correctness standard’ explained in Warren v Coombes (1979) 142 CLR 531 at 552. The recent decision of the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 at [17] establishes that the House v The King standard no longer has application to an appeal against a decision to grant a permanent stay, at least in the civil jurisdiction.  Subsequent decisions of the New South Wales and Victorian Courts of Appeal have determined that the principle expressed in GLJ also has application to the grant of a permanent stay in criminal proceedings: see Koschier v R [2024] NSWCCA 24 at [28]-[42]; and Haris (a pseudonym) v The King (No 2) [2024] VSCA 9 at [58]. The respondent accepts that to be so.

7. The consequence of those determinations is that it falls to the appellate court to consider whether the judge at first instance was wrong in fact and/or law and, if so, to give effect to its own judgment, rather than interfering only if the exercise of the discretion has miscarried.  However, for the reasons which follow, that distinction is of little significance in the resolution of this appeal.

8. The authorities clearly establish that proceedings will only be permanently stayed in an ‘extreme or exceptional case’: see Jago v District Court of New South Wales (1989) 168 CLR 23 at 34; R v Glennon (1992) 173 CLR 592 at 605-606; Agar v Hyde (2000) 201 CLR 552 at [57]; and Dupas v The Queen (2010) 241 CLR 237 at [18], [35]. The court must be satisfied that there is a fundamental defect which goes to the root of the trial of such a nature that there is nothing the court could do to relieve against its unfair consequence. Although the categories of case in which the permanent stay of a criminal prosecution might be ordered are not closed, it is a step which has been described as ‘exceptional’ and ‘rarely justified’: see Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325 at [106]. In making such a determination, fairness to the accused must be balanced against the substantial public interest of having those charged with criminal offences brought to trial: see Dupas v The Queen (2010) 241 CLR 237 at [39]; and R v RD [2016] NSWCCA 84 at [53]-[56].

9. The relevant test is whether the continuation of the proceedings would necessarily and inevitably involve unacceptable injustice or unfairness: see Walton v Gardiner (1993) 177 CLR 378 at 392; R v Edwards (2009) 255 ALR 399 at [23]-[24]. There must be nothing a trial judge could do in the conduct of the trial which would relieve against its unfair consequences: see Dupas v The Queen (2010) 241 CLR 237 at [18]; and R v Glennon (1992) 173 CLR 592 at 605-606.

10. In the circumstances of this particular case, police conducted two child forensic interviews with the first complainant in 2008.  The first interview was conducted when she was six years and eight months of age, and the second interview was conducted when she was seven years and one month of age.  The video recording and verified transcript of the first interview and detailed contemporaneous notes remain available.  The video recording and transcript of the second interview is unavailable, but there are some accompanying notes which were made contemporaneously by the interviewing police officer.  The notes of that second interview disclose what the defence maintains are inconsistencies with the account given in the first interview.  Police determined not to charge the accused following the conduct of the second interview. 

11. A third interview was conducted with the first complainant after she had achieved adulthood, when she was 20 years of age.  That third interview also contains what the defence maintains are inconsistencies with both the first interview and the details recorded in the notes of the second interview.  The accused was not charged with the offences subsequently reflected in counts 1 and 2 of the indictment until 2021, following the conduct of the third interview.

12. The circumstances of this case can be distinguished from cases such as Strickland, in which the prosecution had derived a forensic advantage by reason of unlawful conduct on the part of the Australian Crime Commission, and Holmden v Bitar (1987) SASR 509, in which quarantine officers had destroyed the product the importation of which was alleged to constitute the offence before it could be tested to determine whether the material was prohibited. In the present case, there has been no unlawful or deliberate conduct on the part of law enforcement officers. Although misconduct of that type is not an essential requirement for the grant of a stay, it will more frequently give rise to incurable defect: see, for example, R v Boyd [2002] EWCA Crim 2836 at [19].

13. This case may also be distinguished from the circumstances considered in R v Ali [2007] EWCA Crim 691, on which the judge at first instance placed considerable reliance. In that case, an application made by the complainant for criminal injuries compensation, together with the original investigating officer’s relevant notebook, had been destroyed as a result of a delay between the incident in question and the arrest and charge of the accused. They constituted the sole objective and contemporaneous documents with the potential to establish a suggestion that the complainant had falsified her account of sexual assault. An application for a stay was refused, but the verdicts of guilty were subsequently set aside on appeal. The Court of Appeal observed that this was one of the rare cases where any prejudice flowing from the loss of that evidence could not be cured by jury direction.

14. This case may also be distinguished from the circumstances considered in R v Davis (1995) 81 A Crim R 156. In that case, allegations of indecent assault during the conduct of vaginal examinations were made against a medical practitioner. The incidents were alleged to have taken place some 15 years prior to the matters being reported to police. In the intervening period, the accused had retired from medical practice and his medical records had been destroyed by his secretary. The unavailability of those records constituted a special prejudice because they were the only objective and contemporaneous means by which it could be determined whether the accused had seen the complainant and conducted internal examinations on each of the occasions alleged, and the only means by which the accused could reasonably be able to provide instructions to his counsel about the circumstances giving rise to each of the allegations.

15. The present matter is not such a case.  The video recording and transcript of the first child forensic interview remain available, as does the recording of the interview conducted with the first complainant as an adult.  Although the notes made during the course of the second child forensic interview are not a substitute for the recording or transcript of the interview, they are sufficient to identify matters which might be said by the defence to be inconsistent with the first and third interviews, or otherwise exculpatory.  In particular, the notes of the second interview describe the general nature of the conduct alleged by the first complainant in that interview, the first complainant’s account that her sister was not present at the relevant time, and the first complainant’s uncertainty concerning the circumstances of the alleged conduct.  The notes also record that the first complainant’s response to ‘the majority’ of the questions put to her was, ‘I don’t know’.

16. The first complainant is available for cross-examination in pursuit of the defence line of inquiry in relation to those matters, and the ability to challenge her credibility and reliability has not been lost or significantly prejudiced.  The defence also has available to it a recent statement by the police officer who conducted the interview indicating that police were unable to obtain a consistent and particularised account of the allegations made by the first complainant despite a lengthy attempt to develop rapport, and indicating the police officer’s opinion at that time that there was insufficient evidence to charge the accused.  The most that can be said is that by reason of the unavailability of the recording or transcript of the second interview the defence is potentially precluded from exploring what are described as ‘the magnitude of the inconsistencies between and across the three different accounts’.

17. As the High Court observed in R v Edwards (2009) 255 ALR 399 at [31], trials often involve the reconstruction of events where documents, recordings and other relevant material are not available and/or material witnesses may have died. The determination of issues of fact on less than all of the material which might relevantly bear upon the matter does not of itself make the trial unfair.

18. It is frequently the case that criminal trials proceed with missing evidence, either in the form of a witness’s oral testimony or some form of documentary evidence.  A jury direction has been formulated to deal with those circumstances: see Longman v The Queen (1989) 168 CLR 79. In that direction, juries are commonly told they must not speculate on what other evidentiary material may have been available, they must make their decision based on the evidence before them, and they may take into account any forensic disadvantage they consider the accused has suffered by reason of missing evidence. Where the issue of the missing evidence has arisen in circumstances of delay, that direction may be combined with a direction in accordance with s 165B of the Evidence (National Uniform Legislation) Act 2011 (NT) informing the jury of the nature of any forensic disadvantage to the accused by reason of the delay and the need to take that disadvantage into account when considering the evidence.

19. We are unable to accept the original judge’s conclusion or the respondent’s submission that the first complainant cannot be questioned effectively, either about what she says occurred at the relevant times or about the description of the incident recorded in the police notes.  While it is no doubt the case that the first complainant cannot be questioned in detail about inconsistent statements asserted to have been made in the second child forensic interview, it would be an exercise in speculation to conclude that there is any such inconsistency beyond what is apparent from the police notes. 

20. Although it is no doubt correct to say that a complete reconstruction of the second interview is not possible from the notes, their content still provides the defence with a substantial forensic advantage.  It is also conceivable that the recording or transcript of the second interview might have placed a different complexion on what appears from the face of the police officer’s notes, which clearly operate to undermine the account given by the first complainant in the second interview.  But whatever the potential prejudice or disadvantage to the accused in that respect may be, that matter may be adequately addressed by a Longman direction, which could be combined with a delay direction if considered necessary: see, for example, Director of Public Prosecutions (Vic) v Galloway [2017] VSCA 120 at [316]; Dawson v R [2021] NSWCCA 17 at [181]; and R v Slattery [2002] NSWCCA 367.

21. For these reasons, the determination that this was an extreme case warranting the rarely justified step of a permanent stay was manifestly erroneous.  Accordingly, we make the following orders:

    1.The appeal is allowed.

    2.The order made on 21 June 2023 permanently staying the proceedings is set aside.

    3.The proceedings brought by counts 1 and 2 in the indictment dated 4 November 2022 may continue.

    4.The publication of these reasons for decision is restricted to the parties and their legal representatives until further order.

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