Yovanovic v The King

[2023] NTSC 53

CITATION:Yovanovic v The King [2023] NTSC 53

PARTIES:YOVANOVIC, Danny

v

THE KING

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction

FILE NO:22126844 & 22129564

DELIVERED:  21 June 2023

HEARING DATES:  3 April 2023

JUDGMENT OF:  Blokland J

CATCHWORDS:

CRIMINAL LAW – Criminal Procedure – stay of proceedings – missing

evidence – second Child Forensic Interview (‘CFI’) missing with respect to

one complainant – likely to be exculpatory but insufficient collateral

evidence to determine the questions and answers – missing CFI may be

inconsistent with particulars in indictment – first CFI exculpatory – police

closed investigation after second CFI – 13 years later complainant gave third

interview implicating accused – fact in issue is complainant’s credibility and

reliability – whether grounds for permanent stay – whether any unfairness

created can be mitigated by directions – grounds for permanent stay made

out – proceedings stayed.

Criminal Code 1983 (NT) ss 132(2)(e), 192(4), 339
Evidence (National Uniform Legislation Act) 2016 (NT) s 165B

Barton v The Queen (1980) ALR 449; Connelly v Director of Public Prosecutions [1964] AC 1254; Dietrich v The Queen (1992) 177 CLR 292; Dupas v The Queen(2010) 241 CLR 237; Ebrahim v Feltham Magistrates Court [2001] EWHC Admin 130; Gilbert v The Queen (2000) 201 CLR 414; Holmden v Bitar; Crawford v Bitar (1987) SASR 509; IMM v The Queen [2016] HCA 14; Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23; La Rocca v R [2023] NSWCCA 45; Longman v The Queen (1989) 168 CLR 79; Moti v The Queen [2011] HCA 50; R v Ali [2007] EWCA Crim 691; R v Boyd [2002] EWCA Crim 2836; R v Davis (1995) 81 A Crim R 156; R v Dodds & Harris; ex-parte Attorney-General of Queensland [1996] QCA 402; R v Elliott [2002] EWCA Crim 1199; R v Lipton (2011) 82 NSWLR 123; Ridgeway v The Queen (1995) 129 ALR 41; Sofri v Italy, European Court of Human Rights, Application No 37235/97, 4 March 2003; Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; Stringer v The Queen (2000) 116 A Crim R 198; The Queen v Glennon (1992) 173 CLR 592; The Queen v O’Brien [2017] NTSC 34; The Queen v RCA [2022] NTSC 6; Williams v Spautz (1992) 107 ALR 635, referred to.

REPRESENTATION:

Counsel:

Appellant:T Collins

Respondent:  S Lapinski

Solicitors:

Appellant:NAAJA

Respondent:  Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:  BLO2308

Number of pages:  27

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Yovanovic v The King [2023] NTSC 53

No. 22126844 & 22129564

BETWEEN:

DANNY YOVANOVIC

Appellant

AND:

THE KING

Respondent

CORAM:    BLOKLAND J

REASONS FOR JUDGMENT

(Delivered 21 June 2023)

Introduction

1. This is an application for a permanent stay of proceedings commenced by an indictment covering files numbered 22129564 and 22126844. The broad basis for the application is that the accused cannot be given a fair trial on two of the counts due to missing evidence, namely a second forensic interview between police and the complainant, likely to be largely exculpatory in nature. Investigating police closed the investigation at that time after that interview.

   Background

2. Danny Yovanovic (‘the accused’) is charged with two counts against ST. Both are charges of indecently dealing with a child under the age of 16 contrary to ss 132(2)(e) and 192(4) of the Criminal Code. Both offences are alleged to have occurred on the same occasion between 1^st January and 31^st December 2008. The particulars of the first occasion allege that the accused showed ST a pornographic movie. The particulars of the second count allege that he indecently touched ST on the breast, vagina and buttock while showing her the pornographic movie. The accused also faces 10 charges against another complainant, which are contained on the same indictment.

3. The Court has an inherent power to stay proceedings to ensure a fair trial or prevent an abuse of process. Those powers are additional to, or co-exist with, specific powers under s 339 of the Criminal Code 1983 (NT). Although the specific powers under s 339 permit the Court to quash or amend an indictment, in this matter the Court is not utilizing the specific grounds covered in s 339. Those grounds grant the Court the power to quash an indictment or order a stay when the indictment is ‘calculated to prejudice or embarrass’ is ‘formally defective’ or the proceedings are ‘vexatious or harassing’.

4. In this matter, for the reasons that follow, the proceedings will be stayed, however this ruling is no impediment to the Director of Public Prosecutions filing an indictment which omits current counts 1 and 2, but includes the balance of the counts.

5. The Crown accepts that the prosecution case relies primarily on the evidence of the complainant, there is no medical or forensic evidence.[1] Plainly, this is not unusual and is to be expected in historical sexual abuse cases. There is no reason to be critical of the Crown’s case by virtue of the fact that its case relies predominantly on the evidence of the complainant. Both counsel agree that the main issues in the trial are the credibility and reliability of the complainant.[2] Once again, there is nothing unusual about the central issue being identified as the credibility of the complainant in cases of this kind. In IMM v The Queen, the majority held the probative value and applicable ‘fact in issue’ was not whether certain charged sexual offences were committed but whether the complainant’s account of the commission of charged offences was credible.[3] While the ultimate issue is always whether the Crown can prove the counts on the indictment, the main fact in issue will invariably be whether the complainant can be believed.

6. The evidence to be relied on at trial is:[4]

   i.       ST’s recorded evidence

   ii.ST’s father: to give evidence that he is aware ST made a disclosure to her (now deceased) mother

   iii.     ST’s grandmother: to give evidence about the initial disclosure

   iv.ST’s great-aunt: to give evidence about the initial disclosure, confronting the accused and telling ST’s parents to take her to the police

   v.Constable Robert Gordon: to give evidence about his recollection of the first CFI and the decision not to charge the accused in 2008

   vi.Constable Donna Hofmeier: to tender her PROMIS case notes and diary entry. She will also be called to give evidence about her scant recollection of the missing CFI

   vii.Detective Chris Humphries: to give evidence about the loss of the missing CFI

7. As above, a permanent stay is sought because a central piece of evidence, a Child Forensic Interview (‘CFI’) conducted with ST in 2008 has been lost, and is unrecoverable. For background, there were two CFI’s conducted with ST in 2008. The ‘first CFI’ from 2008 is still available, and there is a verified transcript and extremely detailed contemporaneous notes from the officer who conducted the first CFI. There was a second interview conducted in 2008 with ST (the ‘missing CFI’) which is unavailable. There are minimal accompanying contemporaneous notes. This interview was conducted after April 2008. This is clear from the summary of Superintendent Kirsten Engels in her statutory declaration:

   “There was a second CFI recorded between [ST] and AFP D/I Hofmeier, however this recording has not been retained and is not available for supply to the court. There is a case note entry on the police case management system indicating this CFI, and diary notes made by D/I Hofmeier. These notations will be supplied to the courts.”[5]

8. Following the two CFI’s conducted in 2008, police decided not to charge the accused. As discussed later in these reasons, an inference may be drawn that both CFI’s were of a largely exculpatory nature, additionally, in respect of the missing CFI, an incident may have been described that is not consistent with the particulars of the charge. The accused was charged following subsequent interviews with the complainant in 2021, some 13 years later.

9. Defence accepts that granting a permanent stay is a rare occurrence, but submits that this is an extremely rare case in which a permanent stay is justified.[6]

   General Principles

10. While rare, this Court may grant a stay of proceedings in the exercise of its inherent jurisdiction to prevent an unfair criminal trial. An evaluative assessment must be made to determine whether if the proceedings were to continue, the proceedings would result in an unfair trial. Where there is unfairness, the Court must assess whether the unfairness is sufficiently cogent and compelling to justify the drastic remedy of a stay, or whether the unfairness can be remedied by other mechanisms such as appropriate directions to the jury. In other types of cases which involve for example evidence produced by unlawful means, the remedy may be exclusion of evidence, but this is not a case where such a course would provide a remedy for any unfairness arising. The stay remedy is discretionary but is an exceptional remedy.

11. The right to a fair trial derives from the common law, as modified by statute.[7] The inherent jurisdiction of an Australian Court is clearly stated in Jago v District Court of NSW:[8]

    It is convenient to commence by considering the inherent power of courts to prevent abuses of their process. Australian Courts possess inherent jurisdiction to stay proceedings which are an abuse of process.

12. As Mason and Gibbs JJ said in Barton v The Queen:[9]

    It has generally been considered to be undesirable that the court, whose ultimate function is to determine the accused’s guilt or innocence, should become too closely involved in the question of whether a prosecution should be commenced- see the speeches in Connelly v Director of Public Prosecutions and Director of Public Prosecutions and Humphreys, to which we shall refer shortly – though it may be that in exercising its power to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue. (citations omitted)

13. It is clear that fair treatment to an accused is an essential element of the court process. As emphasized in Connelly v Director of Public Prosecutions,[10] it is of critical importance that courts take responsibility to safeguard proceedings and guard against any abuse of process. Lord Devlin stated:[11]

    Are the Courts to rely on the Executive to protect their process from abuse? Have they not themselves an inescapable duty to secure fair treatment for those who come or are brought before them? To questions of this sort there is only one possible answer. The courts cannot contemplate for a moment the transference to the Executive the responsibility for seeing that the process of law is not abused.

14. There are two recognised broad categories of abuse of process, the first is where the Court’s processes are being used unfairly and the second where public confidence in the administration of justice would be undermined. These broad categories were confirmed in Moti v The Queen,[12] where the High Court stated:[13]

    As pointed out in the joint reasons of four members of this court in Williams v Spautz, two fundamental policy considerations will effect abuse of process in criminal proceedings. First, the “public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike”. Second, “unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice”. Public confidence in this context refers to the trust reposed constitutionally in the courts to protect the integrity and fairness of their processes. The concept of abuse of process extends to a use of the courts’ processes in a way that is inconsistent with those fundamental requirements. (citations omitted)

15. The Court’s jurisdiction to grant a permanent stay of proceedings involves the exercise of a discretion but, as above, the circumstances will be extreme or drastic before such relief is given. In The Queen v Glennon,[14] it was held that ‘a permanent stay will only be ordered in an extreme case and there must be a fundamental defect of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’. That statement was adopted by the High Court in Dupas v The Queen,[15] which notes that there is no ‘definitive category’ of extreme cases.[16]

16. The circumstances in which applications for stays have been brought are wide ranging. They include proceedings brought for a collateral purpose,[17] unreasonable delay,[18] the loss of critical evidence,[19] temporary stay for failure of disclosure,[20] and temporary stay for serious charges where an accused does not have legal representation.[21]

17. It is clearly not the case that a permanent stay should be granted merely because a material witness or particular evidentiary material is unavailable.[22] It is the consequence of the missing evidence on the fairness of the trial which is the focus and whether any unfairness may be mitigated to the degree to enable the trial to be characterised as a fair trial.

18. In R v Davis (‘Davis’),[23] material evidence (medical records) was destroyed by a person acting independently from the accused which prevented the production of this material, which the accused believed would be exculpatory. This arose in circumstances where allegations of sexual offending during medical examinations were raised many years later, and in that time the receptionist of the medical practice had destroyed the old records. The accused gave evidence that he would have made notes on these records about whether an internal examination was done on the patient at the time. He maintained that he could not remember the complainants or if he had performed internal examinations, so the records would go directly to a central issue in the case, being the reliability of the complainants’ account. The Court upheld a permanent stay, citing Williams v Spautz,[24] and stated:[25]

    The court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed”. The point, no doubt, is that, although there is a public interest in bringing allegations of serious criminal conduct to trial, there is no public interest in doing so under circumstances of irreparable unfairness. It is more important to retain the integrity of our justice system than to ensure the punishment of even the vilest offender. We do not say this because the justice system is some precious preserve of the judges; it is not. We say this because the integrity of the justice system is a fundamental and essential element in the maintenance of a free society. Our society should not buy the conviction of its guilty at the cost of allowing trials which would inevitably risk convicting also the innocent. We are satisfied that this unusual case meets even the demanding tests we have quoted. Having regard to the nature of the allegations and the surrounding circumstances, there is nothing a trial judge could do that would overcome the unfairness caused to Dr Davis by the delay that has occurred, with the regrettable consequence of the loss of the medical records. To apply a telling phrase used by Toohey J in Ridgeway v The Queen (1995) 129 ALR 41 at 71, taken from a Canadian case, to force Dr Davis to stand trial on these charges under these circumstances “would offend the court’s sense of justice.

19. In Davis all except one of the complainants came forward with their allegation following the publication of a newspaper article about the allegations of the original complainant. This has some parallels with the present case, where ST participated in another interview over 10 years later following contact from Police, but the allegations made in that interview differed from what can be pieced together from the notes about the missing CFI.

20. In Davis the Court stated:[26]

    It is not enough to say, as some might be tempted to do, that the allegations would not have been made unless Dr Davis was guilty. That argument assumes there can only be one side to the story. Everyday experience in the courts shows this is rarely so. Nor is the situation really changed by the number of the complainants – especially when it is remembered that all except one of them emerged as a result of a newspaper article. We do not for a moment suggest deliberate concoction, but there is always a possibility that the newspaper article induced a degree of unconscious reconstruction. Time, too, may have obliterated memories of inconsistent facts and qualifications, leaving a deceptively clear impression. That is why it is essential to have the facts surrounding each case.

21. While every case must be considered on its own merits, a review of the circumstances which have given rise to a stay of proceedings on the basis of missing or destroyed evidence is of some assistance.

22. In La Rocca v R,[27] a Singapore Airlines label was applied to a box alleged to contain MDMA by a police officer which effectively prevented the accused’s ability to raise a statutory defence. The officer’s conduct was not found to be deliberate or reckless, but the practical effect of affixing the label was that the accused could not raise the statutory defence. This in turn subjected the accused to an incurable forensic disadvantage. The proceedings were permanently stayed. The New South Wales Court of Criminal Appeal held that the administration of justice may be brought into disrepute where conduct by investigating police officers gives rise to a fundamental defect in the trial process which is incurable, irrespective of whether that conduct was deliberate, reckless or knowing.[28]

23. While not involving loss of evidence, but rather a form of mis-handling evidence Strickland v Commonwealth Director of Public Prosecutions (‘Strickland’)[29] provides some guidance. Strickland involved a permanent stay on the basis of unlawful conduct by the Australian Crime Commission during an investigation. The High Court reversed a decision of the Victorian Court of Appeal and ordered a permanent stay. In brief, it was found the Australian Crime Commission acted unlawfully by holding compulsory examinations and permitting the Australian Federal Police (‘the AFP’) to watch the examinations without the interviewee’s knowledge and disseminated the product of the examinations to the AFP and the Commonwealth Director of Public Prosecutions.

24. The finding that the ACCC’s conduct was unlawful was unanimous. The majority held the prosecutions should be permanently stayed, [30] as to allow the prosecutions to proceed would bring the administration of justice into disrepute. Kiefel CJ, Bell and Nettle JJ held this conclusion was supported by the fact the prosecution had derived a forensic advantage from the examinations. Their Honours stated ‘if nothing else, the prosecution derived the forensic advantage, which the examinations were expressly calculated to achieve, of compelling the appellant to answer questions that they had lawfully declined to answer and thereby locking the appellants into a version of events from which they could not credibly depart at trial’. [31] The majority concluded the forensic disadvantage and consequent prejudice to the trials was incurable.

25. In Holmden v Bitar; Crawford v Bitar,[32] a charge under the Quarantine Act 1908 (Cth), involving bringing tins alleged to contain meat pâté into Australia, was dismissed on the grounds of abuse of process. The seizure and destruction of the tins by the quarantine officer deprived the accused of the opportunity to have the contents tested in order to raise evidence in rebuttal to the prosecution case. The inability to test the contents went directly to a central issue in the matter, namely whether the contents of the tins fell under the type of product that was prohibited to be brought into Australia by the legislation. The accused had no personal knowledge of the contents of the tins, and there was no other evidence available to rectify the deficit caused by the destruction of the tins.[33]

1. It should be understood there is no unlawful or deliberate conduct alleged in this case which has made the missing CFI inaccessible and cross-examination on its contents all but impossible, but it is submitted on behalf of the accused that the missing CFI creates a fundamental defect in the trial process.

2. The broader point made by counsel for the Crown that missing evidence, whether witnesses or real evidence, is a common feature of criminal trials is well acknowledged. It is accepted that a direction commonly given to juries is not to speculate on what other evidentiary material may have been available and that they must make their decision on the evidence before them and can take into account any forensic disadvantage an accused may have suffered when assessing whether the Crown has proven guilt.

3. Because of the sequence of events relevant to obtaining evidence forming the basis of counts 1 and 2, the missing CFI and what could be made of it with respect to the credibility of the complainant is far more significant to the fairness of this particular trial than what might be described as ‘common place’ missing evidence. Evidence that might be considered ‘common place’ missing evidence is unlikely to successfully form a proper basis for a stay application. I respectfully adopt what was said in Ebrahim v Feltham Magistrates Court (‘Ebrahim’):[34]

   It must be remembered that it is commonplace in criminal trials for a defendant to rely on ‘holes’ in the prosecution case, for example, a failure to take fingerprints or a failure to submit evidential material to forensic examination. If, in such a case, there is sufficient credible evidence, apart from the missing evidence, which, if believed, would justify a safe conviction, then a trial should proceed, leaving the defendant to seek to persuade the jury or justices not to convict because evidence which might otherwise have been available was not before the court through no fault of his. Often the absence of a video film or finger-prints or DNA material is likely to hamper the prosecution as much as the defence.

4. That is not the type of missing evidence which is the issue here. The missing CFI has a more profound effect on the trial than common place or an ‘everyday’ type of missing evidence.

5. The English Courts appear to require an additional element of bad faith or investigators’ misconduct, unlawful activity or at least incompetence before a stay will be granted.[35] Although misconduct is sometimes a factor in the granting of a stay, Australian courts do not require proof of misconduct.[36]

6. An example of the English approach which differs from the basis for stays in Australia is R v Elliott[37] where through oversight, presumed heroin was destroyed prior to a trial for supplying of the same. The Court of Appeal noted there was no suggestion of dishonesty or incompetence and the defence had not taken the opportunity to request their own expert examination of the subject heroin at an earlier time. The Court of Appeal also noted there was no reason to suggest bad faith on the part of the prosecution by the loss of an exhibit it intended to rely on to assist its own case, rather the loss came about as a result of incompetence, ignorance or lack of liaison. The trial Judge in that instance was held to be correct to exclude the evidence of the expert witness who analysed the drugs, otherwise the trial proceeded and the stay application was dismissed.

7. By contrast, in R v Boyd (‘Boyd’)[38] the Court of Appeal distinguished Ebrahim on the basis that destruction of scientific samples where there was no lay witness who could give evidence, as occurred in Ebrahim, required different considerations.

8. In Boyd a blood sample taken from a defendant by police which was analysed for the presence of drugs had decomposed through not being refrigerated. The charge was one of causing death by careless driving when under the influence of drugs. Ebrahim was distinguished, noting that the subject matter in Ebrahim was the accused was deprived of CCTV evidence which showed the alleged offending, yet there was an eye witness. In Boyd the Court noted the conclusion reached on behalf of the prosecution in interpreting the sample tested by them was open to challenge and in those circumstances, further testing may have shown there was no heroin materially affecting the defendant at the time she drove.[39] The defence was therefore deprived of an opportunity of establishing a defence which may have been open to them. It was held the proceedings should have been stayed.[40]

9. In R v Ali[41] the Court of Appeal quashed convictions for one count of rape in respect of the appellant Ali and two counts of false imprisonment and one of aiding and abetting rape, for the appellant Altaf, noting the appellant Altaf had been acquitted of another count of rape. The appeal was primarily based on the ground that important documents had been destroyed during a period of unjustified delay and, accordingly, it was no longer possible to have a fair trial.[42] There was a delay between the events giving rise to the charges and the dates the appellants’ were charged. The alleged offences took place in 1995. The appellant Altaf was originally arrested in 1997 and not re-arrested until 2004. The appellant Ali was not arrested until 2004. The trial Judge declined applications on behalf of both appellants to stay the trials on the ground of abuse of process. While the delay was the focus of the stay application before the trial Judge, on appeal it was the effect of that delay which was considered to be significant because a number of important documents were not available at trial.[43] In some respects similar to this matter, the fact the documents were not available was not in dispute, nor was it in dispute that the documents had been destroyed as a result of the delay or were no longer available. Common with this matter, it was the significance of the documents which was in dispute.[44]

10. The missing documents, in respect of one complainant was an application made to the Criminal Injuries Compensation Authority (‘CICA’). The second complainant’s application still existed but was found to be false in ‘significant respects’. The second complainant had accepted that fact in her evidence. In relation to the first complainant, the Court of Appeal said ‘No one could know whether T [the first complainant] had falsified her account to CICA. Delay had removed any opportunity for the defence to investigate whether S [the second complainant] had adopted the same approach, apart from cross-examining T [the first complainant] about it. But there was no evidential basis for suggesting she had made a false statement to the CICA, other than the circumstances that the two complainants were friends at the time of the applications’.[45] The Court of Appeal found in the circumstances that there was opportunity for contamination during the initiation of the complaints.[46]

11. A further effect of delay was found to be the destruction of one of the investigating officer’s notebooks. Although another notebook remained it was found to be ‘unhelpful’. The missing notebook was also held to deprive the defence of the opportunity of seeing whether any greater clarification was contained in the officer’s notebook.[47] The prosecution had made no attempt to trace the complainants’ friend to whom an initial phone call was made.[48] Comment was also made as to the quality of the evidence recorded in interviews made by the complainants at the start of the investigation.

12. Although the Court of Appeal dealt with the appeal on the basis of considering whether the verdicts were unsafe, the Court clarified there was a coalescence of the review of an unsafe verdict and the correctness or otherwise of a ruling refusing to stay the proceedings.[49] The Court of Appeal reaffirmed it will only be appropriate to stay or dismiss proceedings if there can no longer be a fair hearing or it will otherwise be unfair to try the defendant. Ultimately the Court of Appeal came to the conclusion that the loss of material evidence (the complaint to CICA and the notes) with unsatisfactory evidence of the initiating complaints cast doubt on the verdicts, but also found ‘this a rare case where the prejudice flowing from that loss of evidence was not cured by any direction given by the Judge. Indeed the directions of the Judge highlight the difficulties as to the fairness of the procedure caused by the loss of the evidence.’[50]

    The Application

13. As above this application is brought on the basis that the circumstances here are exceptional such to warrant a permanent stay; that the accused is prejudiced to such an extent that a fair trial cannot be remedied by direction, bearing in mind the missing evidence goes directly to the substantive issue in this case.[51]

14. I will briefly summarise the recent history of the matter, and the information available about the missing CFI as I understand it. There have been multiple trial dates listed and vacated, the most recent before me in April 2023. The matter is currently listed for trial in July 2023 before another Judge.

15. In his statutory declaration dated 28 October 2022, Detective Sergeant Chris Humphries explained that after contact with police in 2021, ST conducted a recorded interview in which she indicated that she had engaged in an interview with police when she was around 8 years of age.[52] Detective Humphries was initially unable to locate mention of such evidence on the police system until he performed an advanced text search.[53] He contacted the police officers who he believed had prior involvement and obtained statements from them, principally Robert Gordon and Donna Hofmeier.[54]

16. The recording and transcript of the first CFI and the statements of Robert Gordon and Donna Hofmeier (including their case notes which were attached) were disclosed to the defence prior to 31 October 2022. Defence became aware of the missing CFI from an entry in the case notes attached to the statement of Donna Hofmeier, ‘a second CFI was conducted with [ST] DOB [redacted] on Wednesday 24 September 2008.’ Defence counsel submitted that these notes also indicate that this second CFI was crucial in the decision of police not charging the accused in 2008, and that this interview appears to have been substantially different from the first CFI conducted in April. The relevant passage states:

    [ST] disclosed to police that she was touched on the bottom by the POI at House [redacted] Minmarama Park, but indicated on her bum cheek; She could not tell Police where, when or whether she was wearing clothes, how it happened. In fact, the majority of her answers were “don’t know”. She was very restless and did not appear to understand the questions, she did state that [redacted], her sister was not there. She did say she was scared of Danny but could not tell Police why. This is the second CFI police have conducted with [ST] where she has been very vague, and police are of the opinion no benefit at this time would be gained by a third CFI… Due to insufficient evidence the criminal investigation into this matter has been finalised.[55]

17. After noting this information, his Honour Acting Justice Reeves asked the prosecution to source further information from Police regarding all dealings with this matter. Acting Commander Kirsten Engels prepared a statement dated 20 December 2022 containing a summary of her comprehensive search attempting to find the missing CFI. Her statement details attempts to find physical and digital copies of the CFI, but ultimately her search was unsuccessful. Her investigation concluded that “there was a second CFI recorded between [ST] and ex NTPF member, Kylie Chambers… the recording has not been retained and is not available for supply to the court”.[56] Also attached to this statement are brief hand written notes dated 24 September 2008, assumed to be regarding the missing CFI, although they are not clearly labelled.

18. It is clear that a second CFI was conducted with ST, but there does not appear to be any real prospect of this recording ever being recovered.

    ‘Longman’ Direction

19. The Crown submitted during oral argument at the hearing of the application that the unfairness could be cured with a Longman, or forensic disadvantage, direction. It has long been the case that, in cases involving allegations of historic offending, the trial judge may be obliged to direct the jury as to the forensic disadvantage faced by the accused because of delay between the alleged offending and the trial. Such a direction, called a ‘Longman direction’ following the decision of the High Court in Longman v The Queen,[57] includes specific reference to various kinds of forensic disadvantage. Some examples are the loss of a chance to:[58] (i) explore the circumstances of the alleged offending in detail; (ii) identify the occasion of the allegations with specificity; (iii) make any defence other than a simple denial; (iv) establish an alibi; (v) call evidence contradicting the broader evidence of the complainant; (vi) obtain documents that may have assisted; and (vii) test events that may have affected the complainant’s recollection or reliability. Also included is the exacerbation of these difficulties where the complainant’s recollections are weakened by the delay.

20. The accused must satisfy the trial judge that a Longman direction is warranted due to significant forensic disadvantage. If that is done, a direction will be given, and courts are generally to proceed on the basis that the jury will follow directions given by the trial judge.[59] Although a warning is available under the procedure contained in s 165B of the Evidence (National Uniform Legislation Act) 2016 (NT), that provision applies specifically to delay. This matter concerns the effect of delay on the fairness of the trial. It is accepted here that there is substantial commonality between the Longman direction and a direction under s 165B and in this instance, not a great deal turns on the difference between the two.

21. The accused submits that it would be impossible to appropriately direct the jury with regards to the information and the notes.[60] The available notes are not able to be a substitute for the recording in this case. This is in contrast to R v Dodds & Harris; ex-parte Attorney-General of Queensland,[61] where there were sufficient original notes from the Department and a doctor who examined the alleged victim to make up for the police file and complainant’s original statement being lost. Further, there was no information about why the complaint did not proceed at the time of the original statement. This is in contrast to the present case where the vague answers of the complainant in the missing CFI appear to be the reason for not proceeding with the criminal investigation in 2008.[62]

22. I do not accept in this case that a Longman direction, or a direction of the kind that may be sought and given under s 165B of the Evidence (National Uniform Legislation Act) 2016 (NT), will sufficiently cure the forensic disadvantage that arises by virtue of the missing CFI. In a case which will be substantially determined on the jury’s assessment of the reliability and credibility of ST, the significant gap created by the missing CFI cannot be closed with a direction. The jury would need to be directed that they may think or infer the missing interview is likely to have been inconsistent with the charges and likely to have been exculpatory, without knowing the questions or answers that were actually given. The complainant cannot be questioned realistically either in examination in chief or cross-examination about the content of the missing CFI. The jury would be told not to speculate on what the questions and answers may have been. Directions on how to assess the facts and how to consider the weight of various types of evidence could not assist greatly. While Directions may help, a trial Judge cannot make things up.

23. The jury would be told the complainant cannot be realistically cross-examined about the missing interview, but that they should not draw any conclusions from that fact, save that the accused was at some disadvantage when the complainant was cross-examined. The jury would be told to make their decisions regardless, save that the jury would be told to take any forensic disadvantage into account when assessing the evidence and considering whether the Crown has proven the case beyond reasonable doubt. There are no doubt other directions which could be given, but the conceivable directions are not satisfactory and do not cure the unfairness. Directions may potentially enhance the unfairness because the inferences a jury would be asked to draw track closely to speculation. The appellant would be deprived of making a significant point about the credibility or reliability of the complainant, the major fact in issue.

24. This is nevertheless an unsatisfactory conclusion as the complainant wishes to give evidence about what happened to her. In ordinary circumstances, she should have the opportunity to go to trial to vindicate her rights as a complainant. That will not be possible and is a sad conclusion. None of this is any fault of the complainant. In a criminal trial the Court must ensure the accused will have a fair trial and that is the focus when the state of the evidence is as described.

    Extreme Case

25. As discussed, the basis of the application is that the lack of the missing CFI constitutes forensic disadvantage that cannot be cured with a direction or through cross-examination. It was submitted by the applicant that there is distinction between the two interviews. If the ‘first CFI’ had been lost then the forensic disadvantage could be cured as there is enough evidence and information to work out what the substance of that interview is, and all that would be lost would be the ability to see the demeanour of the witness in the interview.[63] The applicant submits that this is not the case with the missing interview, and that there is not enough collateral information to cure the forensic disadvantage. I agree.

26. The collateral information for the missing CFI consists of a few lines in a case note authored by Detective Inspector Donna Hofmeier. She states in her statutory declaration that she is unable to recall the interview or provide any further information beyond the case note entries she wrote at the time.[64]

27. I accept that it is difficult, if not impossible, to reconstruct the missing interview from the notes. While it is clear that ST responded ‘I don’t know’ multiple times, it is unclear what questions she was asked and the inculpatory material contained in the notes is a touch on the buttock, which is significantly different to how the charge has proceeded. Without a transcript or more comprehensive notes, it would be dangerous to attempt to reconstruct the missing CFI and it cannot be known what the contents of the missing CFI were in any detail. Compounded with the time that has elapsed since this interview, I accept that it is unlikely that the police involved or ST would have an independent recollection.

28. It is clear that there were significant differences in the first CFI and the missing CFI, even from the basic notes available about the missing CFI. For example, that ST’s sister was not there when it had previously been stated that she was. She was also unable to tell Police where, when or whether she was wearing clothes,[65] or how it happened.[66]

29. The loss of the CFI is not a peripheral matter, and affects the substantive issue of this case. I agree with the submissions made on behalf of the accused regarding the similarities of this case and R v Davis.[67] I agree that the forensic disadvantage that arises in the absence of an ability to reconstruct the missing CFI significantly prejudices the accused, and is an insurmountable barrier to the ability to challenge the reliability and credibility of ST. It is not simply that the evidence is lost, but rather the clear prejudice that results that supports a permanent stay of the two counts that are the subject of this application. This is particularly so where, following the missing CFI, police finalised the criminal investigation at that time.

1. This is a case where the missing CFI creates such extraordinary prejudice to the accused that it is unable to be cured or rectified during court proceedings.  

2. It is fully accepted there was no deliberate conduct on the part of investigating police which led to the CFI being lost. The result of running a trial without the missing CFI does however give the prosecution a ‘forensic advantage’, a factor taken into account by the High Court in Strickland. The forensic advantage is that the principal witness will not realistically be cross-examined about a significant subject which would likely damage her credit or reliability. This is not a case where the disadvantage is equal for both the prosecution and defence, but rather there would be a distinct advantage for the prosecution.[68]

3. Orders

   1.        The proceedings are permanently stayed.[69]

   2.        These reasons are to be forwarded to counsel by email.

[1]    Transcript, R v Danny Yovanovic, 1 September 2022, Alice Springs Supreme Court, Barr J at 5.

[2]    Transcript, R v Danny Yovanovic, 3 April 2023, Alice Springs Supreme Court, Blokland J at 18.

[3]    IMM v The Queen [2016] HCA 14; 257 CLR 300 at [38]-[51], [62] per French CJ, Kiefel, Bell and Keane JJ.

[4] Crown’s written submissions in response at [17].

[5]    Statutory Declaration Kirsten Engels 20 December 2022 at 3.

[6] Defence written submissions at [3].

[7]    The Queen v RCA [2022] NTSC 6 at [12].

[8] (1989) 168 CLR 23 at [25] per Mason CJ.

[9] (1980) ALR 449 at [5].

[10] [1964] AC 1254.

[11] Ibid.

[12] [2011] HCA 50 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

[13] Ibid at [57].

[14] (1992) 173 CLR 592 at 605, quoting Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23 at [34] per Mason CJ and Barton v The Queen (1980) 147 CLR 75 at 111 per Wilson J.

[15] (2010) 241 CLR 237.

[16] Ibid at [35].

[17]     Williams v Spautz (1992) 107 ALR 635.

[18]     Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23.

[19]     R v Davis (1995) 81 A Crim R 156 (‘R v Davis’).

[20]     R v Lipton (2011) 82 NSWLR 123.

[21]     Dietrich v The Queen (1992) 177 CLR 292.

[22]     Stringer v The Queen (2000) 116 A Crim R 198 at [11] per Grove J.

[23] (1995) 81 A Crim R 156.

[24] (1992) 174 CLR 509 at 519.

[25]     R v Davis (1995) 81 A Crim R 156 at 21.

[26] (1995) 81 A Crim R 156 at 22.

[27] [2023] NSWCCA 45 (‘La Rocca’)

[28]     La Rocca at [34], [40]-[44] per Bell CJ, [66] per Davies J and [67] per N Adams J.

[29] (2018) 266 CLR 325; [2018] HCA 53.

[30]     Kiefel CJ, Bell, Keane, Nettle and Edelman JJ.

[31]     Strickland at [75].

[32] (1987) SASR 509.

[33] Ibid at 516.

[34] [2001] EWHC Admin 130, [2001] 1 WLR 1293 at [27] per Lord Justice Brooke.

[35]     Ebrahim v Feltham Magistrates Court [2001] EWHC Admin 130; [2001] 1 WLR 1293 at [23]-[26].

[36]     La Rocca v R [2023] NSWCCA 45.

[37] [2002] EWCA Crim 1199.

[38] [2002] EWCA Crim 2836, Lord Justice Rose, Vice President; Mr Justice Gibbs, Mr Justice Davis.

[39] Ibid at [19].

[40] Ibid at [20].

[41] [2007] EWCA Crim 691.

[42] Ibid at [1].

[43] Ibid at [14].

[44] Ibid.

[45] Ibid at [17].

[46] Ibid [19]-[20].

[47] Ibid at [20].

[48] Ibid at [22].

[49] Ibid at [27].

[50] Ibid at [45].

[51] Defence’s written submissions at [31].

[52] Statutory Declaration of Chris Humphries, 28 October 2022 at [3].

[53] Statutory Declaration of Chris Humphries, 28 October 2022 at [4].

[54]     Statutory Declaration of Chris Humphries, 28 October 2022 at [8]-[11].

[55]     Statutory Declaration of Donna Hofmeier, 28 October 2022, CNE 42112145.  

[56] Statutory Declaration of Kirsten Engels, 20 December 2022 at [13].

[57] (1989) 168 CLR 79.

[58] See for example, the Judicial College of Victoria ‘Criminal Charge Book’, [4.8.4]-[4.8.5]. See also the Judicial Commission of New South Wales ‘Criminal Trial Courts Bench Book’, [2-640]-[2-650].

[59]See The Queen v O’Brien [2017] NTSC 34 at [42] per Grant CJ, citing Gilbert v The Queen (2000) 201 CLR 414 at [13] per Gleeson CJ and Gummow J: ‘The system of criminal justice, as administered by appellate courts, requires the assumption that, as a general rule, juries understand, and follow, the directions they are given by trial judges.’ See also Gilbert v The Queen at [32] per McHugh J: ‘[The] fundamental assumption of the criminal jury trial requires us to proceed on the basis that the jury acted in this case on the evidence and in accordance with the trial judge’s directions…’.

[60] Applicant’s written submissions at [32].

[61] [1996] QCA 402.

[62]     Statutory Declaration of Donna Hofmeier, 28 October 2022,

[63] Applicant’s written submissions in reply at [5].

[64]     Affidavit Tania Collins, Annexure 3 at [4]-[6].

[65]     Transcript, first CFI, April 2008 at 58.

[66]     Statutory Declaration of Donna Hofmeier, 28 October 2022, CNE 42112145.

[67] (1995) 81 A Crim R 156.

[68]     CF. Sofri v Italy, European Court of Human Rights, Application No 37235/97, 4 March 2003 where evidence was destroyed shortly after homicide suspects were charged. The consequences of the destruction of the evidence did not establish that the accused were put ‘at a disadvantage compared to the prosecution’, hence there was no violation of Article 6, Right to a fair trial.

[69]     See para [4] above. This does not affect the power to file a fresh indictment which omits count 1 and 2.