R v Pickett HC Wellington CRI 2007 035 1724

[2008] NZHC 559

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2007 035 1724

THE QUEEN

v

P

Hearing:         11 April 2008

Counsel:         A R Davie & J Brown for Accused

I R Murray for Crown

Judgment:      22 April 2008

RESERVED JUDGMENT OF DOBSON J

[1]      The accused is charged with one count of indecent assault on a girl between

12 and 16 years, two counts of rape and one count of sodomy.  The charges relate to an incident that occurred sometime between 1 December 1973 and 4 February 1974. The accused has applied for orders granting a stay of prosecution and a discharge pursuant to s 347 of the Crimes Act 1961.

Circumstances of the charges

[2]      According to the complainant’s deposition, the accused, then aged 15, and the complainant who is the accused’s sister and was then aged 13, were home on

their own during summer school holidays.  The accused urged the complainant into

R V P HC WN CRI 2007 035 1724  22 April 2008

his bedroom and asked her to touch his penis.  When she refused, he blocked the exit and pinned the complainant on the floor.   He forced her to open her mouth and inserted  his  penis.     The  accused  then  forcefully  removed  the  complainant’s underwear and raped her.  The complainant was then turned over, and the accused sodomised her before raping her a second time.   Throughout the incident the complainant had been struggling to no avail.  The accused then threatened her not to tell her parents, before the conduct complained of came to an end.

[3]      The complainant did not tell her parents of the incident, but says that she confided in a counsellor when she was 25, some 12 years later.  After their mother died, the complainant told her father who was apparently upset at the allegations and, at her request, organised a meeting with the accused in August 1996.  The meeting allegedly occurred, and included an admission by the accused.  However, the father has since died.

[4]      The accused denies that there was any incident, and denies that any such meeting took place.

The accused’s application

[5]      It was argued for the accused that the Court should exercise its inherent jurisdiction in granting a stay of prosecution.   This was originally based on four grounds, but in argument, Mr Davie pared these back to two:

•The period between the time of the alleged incident and when the charges were brought is 34 years, and this delay prevents the possibility of a fair trial; and

•      That the accused was a child in 1974 raises difficulties in dealing with him in

2008.

[6]      The accused relies on the approach taken to stays of prosecution in Bannister v R HC AK T001231 1 November 2000, Nicholson J.  In that case the Judge adopted the approach in W v R (1998) 16 CRNZ 33 and R v The Queen [1996] 2 NZLR 111.

The overall presumption is that permanent stays of proceedings based on the inherent jurisdiction of the Court must only be made in exceptional circumstances.  The onus is on the accused to displace that presumption by showing it is impossible for him to receive a fair trial.  This is to be established by evidence of prejudice, either specific or general.

[7]      Mr Davie outlined two instances of specific prejudice associated with the delay in this case.  First, the accused states that during the period at issue, he worked full time at a department store.  Records corroborating this potential alibi no longer exist.

[8]      Secondly, the parents of the complainant and the accused are both dead. Their  non-availability  may  be  relevant  in  separate  ways.    The  complainant’s evidence includes complaints about abusive treatment by her mother, and that the accused  was  always  the  favourite,  with  the  complainant  being  “unwanted”. Although not raised specifically, one implication might be that the complainant did not complain at the time she was raped and sodomised, because of fear that the mother would take her son’s side, and that the complainant would not be believed. As to the father’s unavailability, the accused argues that he would have corroborated his own denial of the alleged family meeting where the matter was raised and, on the complainant’s version, an admission made.  Moreover, the accused argues that his mother could have corroborated his potential alibi, because they had a pattern of lunching together.   Another witness – the accused’s aunt – who, it is submitted, could have been a useful witness, is also dead.

[9]      The accused also submits that his father worked for his wife and stayed with his family in the period after the alleged family meeting, and had the father been truly upset after being informed about the accused’s alleged actions, he would not have associated with him.  It was not clear whether this argument was intended to prove particular prejudice, as it can still be argued at trial.

[10]     The accused also argues that he is generally prejudiced on account of the very long delay, and relying on K v R (2003) 20 CRNZ 622, argues that the longer the

delay, the greater the scrutiny required.  The 34 year lapse here is longer than the lapse of up to 32 years, which contributed to a stay being granted in that case.

[11]   Mr Davie separately submitted that there are concerns with trying and potentially sentencing the  accused  in  this  Court,  whereas  had  the  charges  been brought promptly he would have been dealt with in what was then the Children’s Court. There he could not have been sentenced to imprisonment.

[12]     Mr  Davie  also  tentatively  questioned  the  quality  of  the  complainant’s deposition, and while he did not invite the Court to question her reliability as a witness as a result, he did point out some inconsistencies and concerns with her large intake of prescription medicine.

The Crown’s opposition

[13]     In opposition to the application, the Crown referred to the proposition in R v O [1999] 1 NZLR 347 that delay in and of itself is not sufficient to warrant a stay. The delay must have caused prejudice to the accused, and in particular, such prejudice cannot be speculative; there must be evidence of the particular prejudice incurred.

[14]     On this basis, the Crown argued that the instances of specific prejudice raised were  purely  speculative.    That  the  destruction  of  his  employment  records  is prejudicial assumes that they would have provided a sound alibi, which they may well not have.   Moreover, the death of his parents assumes that they would have acted as essential defence witnesses, which cannot be accepted because, for instance, the  father  could  have  equally  assisted  the  Crown’s  case.    Nor  were  they  key witnesses in the sense of being present, given that the alleged offending occurred when they were out of the house.

[15]     The Crown submits that this is a classic “he said/she said” case, and it would have been the same in 1974; the basic elements of the accused’s case have not been eroded.    For  this  reason,  prejudice  that  warrants  a  stay  is  simply  not  present. Mr Murray submitted that juries can make allowances for the lapse of time.   A

warning as to reliability under s 122(2) of the Evidence Act 2006 would address the point.

Discussion

Stays of prosecution - general

[16]     Delay is not in and of itself sufficient to justify a stay of prosecution.   As

Holland J said R v E T E (1990) 6 CRNZ 176 at 181-2:

If a Judge is satisfied that a delay has been so great, and the prejudice to an accused is of such a nature that it would be quite unfair or unjust for the prosecution to be allowed to continue, then the Court may discharge an accused under the provisions of s 347. […]  In order to obtain a discharge there must be established to the satisfaction of the Judge something more than mere delay so as to render the continuation of the proceedings to be unjust.

[17]     The prejudice mentioned by Holland J takes two forms.  Specific prejudice involves the death of witnesses or destruction of evidence on account of the delay and general prejudice involves overall impairment in mounting a defence on account of the delay: W v R at 36.

[18]     A number of decisions regarding applications for stay in historical sexual offending have arisen in the past 20 years.   They help identify the factors that establish prejudice.   In R v Accused (CA160/92) (1992) 10 CRNZ 152 (CA), the Court of Appeal noted at 162 that:

It is possible to imagine a case in which allegations of sexual misconduct are so vague or relate to a time so long ago, without justification for the delay, that it would be unfair to place an accused on trial upon them.   Then the possibility of exercising the protective inherent jurisdiction would fall for consideration in all the circumstances of the particular case.  But the present case is clearly not in that class.  The reasons for the delay in complaining have not been explored; the defence did not apply for leave to cross-examine the complainants at the preliminary hearing.   The three complainants give vivid and detailed accounts of a conduct alleged by each against the accused and the surrounding circumstances.   A reading of their written statements produces a sense that the appellant's claims of vagueness are largely unreal.

[19]     This  suggests  a  focus  on  the  relative  precision  or  vagueness  of  the allegations.  The vivid nature of the complainant’s evidence was also influential in R v Accused (CA 260/92) [1993] 2 NZLR 286 (CA) at 288:

Both the New Zealand Court of Appeal case and the English Divisional Court case recognise or are consistent with the view that, where the period of delay is long, it can be legitimate for the Court to infer prejudice without proof of specific prejudice.   Whether that inference should be drawn, or whether in all the circumstances of a particular case it is unfair to place the accused on trial, must depend on the particular circumstances. […]

While  it  is  not  inconceivable  that  the  protective  jurisdiction  could  be exercised […]  the circumstances of the present case are far from warranting its exercise.    As  in  R  v  Accused  (CA  160/92)  the  evidence  against  the accused is vivid and detailed; on paper at least his denials are rather evasive and certainly unconvincing; and we have no doubt that the prosecution was well entitled to present the charges and the jury well entitled to find them proved beyond reasonable doubt. (Cooke P for the Court of Appeal)

[20]     In this context, I take the vividness of a deposition to go to the prospects for an accused to answer the allegations, rather than as a measure of its reliability.  The issue here is prejudice to the ability to mount a defence.   The difficulties in challenging  aged  allegations  are  seriously compounded  if  the  allegations  are  in vague terms, or relate to a lengthy or undefined period.  As the Court of Appeal put it in R v O:

Is the complainant’s evidence so fraught with memory problems that the accused is unfairly faced with trying to defend himself against accusations which are insufficiently specific in relation to lace or circumstances? (at 350)

[21]     There may be cases where a view can be taken as to the relative unreliability of a complainant (such as in K v R where the complainant acknowledged making a false complaint of sexual abuse against her father).   However, to the extent some cases  suggest  that  the  overall  merits  of  the  case  should  be  factored  into  the assessment (eg K v R at [13]]), that does not necessarily require an evaluation of the prospects for a conviction such as would be reflected in any analysis of the relative credibility of the complainant, as gleaned from her deposition.

[22]     Consistently with other exercises of the Court’s inherent jurisdiction, the power  to  grant  a  stay  is  necessarily  a  discretionary  one  wholly  based  on  the particular circumstances made out in the particular case.  It is clear that the ability for

the defence to mount a defence and the vividness of the claims are important factors involved in the exercise.

Application to the current instance

[23]     This application is certainly a credible one.   There are factors that indicate both specific and general prejudice in this instance and accordingly raise a risk that a fair trial is not possible.  Moreover, Mr Murray for the Crown could only allude to possible justification for the delay, rather than point to specific factors.

[24]     However, I am not satisfied that the forms of prejudice the accused relied on establish the requisite extent of prejudice.   His defence has not been materially eroded; it is unclear whether the employment  records  or  his  parents’  testimony would have been central to his case, and therefore any prejudice by their absence is speculative.

[25]     Importantly, the complainant’s deposition is intense and vivid, a factor the

Court of Appeal has put significant weight on in the past.

[26]     There is sufficient ability for the accused to put his alibi in issue, although I do acknowledge that the most potent form of doing this would mean relinquishing his right not to give evidence.   However, as Mr Murray pointed out, the accused could rely on his strong statements in the videotaped interview with the Police. Moreover, to show that it would be unlikely his father would have fraternised with the accused and his family had he known about the allegations, he could call his wife to give testimony as to his father’s demeanour, or simply have his version of the family contacts put in cross-examination of the complainant.   I do not agree that K v R is a comparable case to this one; in that case there was a clear basis for rejecting the complainant’s allegations, and they seem relatively more difficult to answer.

[27]     Unreliability   of   the   complainant’s   evidence,   or   more   generally,   any unlikelihood of a conviction, were not advanced as additional grounds for a stay. Here, I would not be prepared to make any judgment on how reliable a witness the

complainant will make.  The essential point is that her evidence is not cast in vague terms which, when coupled with the delay, would significantly impair the ability of the accused to mount his defence.

[28]     For completeness, I note the accused’s argument that his age at the time of offending is problematical in dealing with him today.  I cannot accept this argument: had the charges been laid in 1977, for example, the accused would have been dealt with in the then Supreme Court without incident.   Any concerns in terms of sentencing are valid, but must only be a consideration if and when the accused is convicted of these charges, and not as part of this inquiry.

[29]     Accordingly, the application for stay is declined.

Dobson J

Solicitors:

Treadwells, Wellington for the Accused
Luke Cunningham & Clere, Wellington for the Crown