W v R HC Hamilton CRI 2004-419-098

[2005] NZHC 1235

ORDER PROHIBITING PUBLICATION OF NAME ADDRESS OR PARTICULARS IDENTIFYING APPLICANT

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2004-419-098

W

Applicant

v

THE QUEEN

Respondent

Hearing:         24 February 2005

Appearances: D Hall for Applicant

RG Douch for Crown Judgment:  18 March 2005

RESERVED DECISION OF LAURENSON J.

In accordance with r 540(4) I direct the Registrar to endorse this judgment with the delivery time of 10.45am on Friday 18 March 2005.

Solicitors:

Gavin Boot Law, Hamilton Almao Douch, Hamilton

W V R HC HAM CRI 2004-419-098 [18 March 2005]

Introduction

[1]    This is an application to stay a criminal prosecution against the accused who faces trial on 9 May 2005. He faces nine counts of sexual offending against his cousin between May 1975 and May 1985.

[2]    The applicant alleges that, in this case, there has been a prosecutorial delay such that, if the trial proceeds, this will produce a miscarriage of justice because, during the period of delay events have occurred which will prejudice the applicant’s defence.

Factual background

[3]    The complainant in this case was born on [   ] 1970. She is the cousin of the applicant who was born on [    ] 1958. She first complained to the Police some time in 1998 that, when she was between the ages of 5 and 15, she was subjected on many occasions to a variety of forms of sexual criminal behaviour by the accused. These included various forms of indecent assault, rape and sodomy.

[4]    The accused was interviewed by the Police on 9 April 1998. He declined to make any comment when faced with the allegations against him but said that he was “shocked” by them.

[5]    On 12 June 1998, the complainant made a statement to the Police in which she said:

“I am speaking to Detective Wainwright about my complaint of sexual abuse on me by my cousin [the applicant].

I do not wish to proceed with my complaint.

My complaint is true, however I cannot face the stress of a court case or the thought of B going to jail.

I feel that the family pressure on me over this has been intense and I cannot cope with it.

I have not been forced to withdraw my complaint.

I understand that B has declined to answer questions about my allegations but that does not really affect my decision.

I will be seeking other options within the family in the hope of resolving this matter; such as mediation/counselling.”

[6]    The Police did not, as a result, proceed further with the prosecution. However, some time in late 2003 the complainant renewed her complaint with the result that the accused was reinterviewed by the Police on 3 June 2004. On this occasion, whilst denying some allegations, he admitted others including masturbating on the complainant, having consensual intercourse with her and, touching her vagina. In addition, he corroborated some of the details and movements alleged by the complainant.

[7]    The Police filed informations on 9 June 2004 alleging various forms of criminal sexual behaviour including indecent assaults, rape and sodomy, or attempted sodomy. The applicant was committed for trial following a deposition hearing on 29 July 2004. He was arraigned in this Court on 5 November 2004 when he pleaded not guilty to nine counts.

The applicant’s case

[8]The applicant submits that:

“Due to the historical nature of the allegations there is inter alia the risk of contamination of evidence, and further obvious prejudice to the accused in that, due to the passage of time, he may be prevented from investigating or pursuing lines of inquiry that could assist in the preparation of his defence.”

[9]More particularly, the applicant has submitted:

[a]To allow the prosecution to proceed would involve a high degree of unfairness in that the accused had been entitled to assume after the complaint was withdrawn in 1997 that he could put the matter behind him and put his life together again.

[b]Allied to the first ground is the submission that the Police acted improperly by accepting the complainant’s withdrawal in 1998 and thereafter failing to proceed with the prosecution at that point.

[c]There is particular prejudice to him by reason of the death of a number of witnesses during the period after 1998 who would have been material to his defence and, his  deteriorating health situation in the same period.

[10]The Crown’s response is:

[a]The applicant was not entitled to make any assumption after the complaint was withdrawn that the matter was necessarily ended.

[b]The Police acted responsibly throughout. In particular, the decision not to continue with the prosecution in 1998 cannot be taken as untoward because, the matter was only revisited following the second complaint and hence the delay from 1997 is properly categorised as complainant delay.

[c]So far as the alleged specific prejudice is concerned the nature of the alleged offending is such that, the persons now deceased could, at best, only have testified as to opportunity or lack of it. The applicant has not provided any basis to indicate whether other similar witnesses may not still be available. Whether or not this is the case, the complainant’s evidence is coherent and credible, and the recent admissions by the applicant argue strongly in favour of having the matter proceed. If there is a prejudice to the applicant’s proposed defence which, at this point, appears to involve denial of some offending and an allegation of consensual conduct in other cases, then, for these reasons, the present application is best left to be decided by the trial Judge.

Principles

[11]   There is no dispute between the parties as to the relevant principles relating to the nature and consequences of delay all of which arise within the context of an

absence of any statutory limitation on the commencement of a prosecution for a serious crime. The relevant principles are:

[a]The essential issue is whether or not an accused person can have a fair trial. That is a fundamental requirement of the criminal justice system. (See R v Accused CA 291/90) [1991] 3 [NZLR] 405).

[b]The considerations to be taken into account are, however, wider than simply ensuring a fair trial. As the Court of Appeal has said in Fox v Attorney General [2002] 3 NZLR 62:

[37] These principles set a threshold test in relation to the nature of a prosecutor’s conduct which warrants a decision to end a prosecution, prior to trial, as an abuse of process. Conduct amounting to abuse of process is not confined to that which will preclude a fair trial. Outside of that category it will, however, be of a kind that is so inconsistent with the purposes of criminal justice that for a Court to proceed with the prosecution on its merits would tarnish the Court’s own integrity or offend the Court’s sense of justice and propriety. The power of stay is not available for disciplinary purposes nor to reflect a Court’s view that a prosecution should not have been brought. The hallmarks of official conduct that warrant a stay will often be bad faith or some improper motive for initiating or continuing to bring a prosecution but may also be simply a change of course by the prosecution having a prejudicial impact on an accused. Finally, to stay a prosecution, and thereby preclude the determination of the charge on its merits, is an extreme step which is to be taken only in the clearest of cases.

[c]The onus is on the applicant for a stay to establish on the balance of probabilities that a fair trial could not be held. (See Tan v Cameron [1993] 2 All ER 493; R v Stockman HC Hamilton T17/93 10 September 1993).

[d]The discretion is to be exercised sparingly. In Moevao v Department of Labour [1980] 1 NZLR 464, the Court of Appeal said at 470,

“However it cannot be too much emphasised that the inherent power to stay a prosecution stems from the need of the Court to prevent its own process from being abused. Therefore any exercise of the power must be approached with caution. It must be quite clear that the case is truly one

of abuse of process and not merely one involving elements of oppression, illegality or abuse of authority in some way which falls short of establishing that the process of the Court is itself being wrongly made use of.”

[e]Where the delay is that of the complainant as opposed to that of the prosecution or the court system, there is no presumption of prejudice absent proof of actual prejudice arising from the complainant’s delay in the particular case. (See R v Walker (1990) 5 CRNZ 519).

[f]In R v S (1992) 9 CRNZ 490, Doogue J stated at 494:

“I accept that in the ordinary course, in the absence of actual prejudice, delay in bringing a complaint will not of  itself be a ground upon which the Court should stay a proceeding for abuse of process.”

Issues which arise

[12]   The matter which has given rise to the present application is the fact that, after a period of some five years, the Police elected to charge the accused after having not proceeded previously. It is this period of delay which falls to be examined in determining the question whether that delay has caused the applicant disadvantage of such degree that high right to a fair trial has been put in jeopardy. An important factor to be considered is whether the delay could properly be described as stemming from the complainant’s actions, or from the Police actions.

[13]   There have been other instances where prosecutions have not followed complaints until some years later. In R v T HC Auckland T126/92, 1 September 1992, Doogue J had to consider a situation where there had been a complaint of rape and indecent assault in 1984. No prosecution had been pursued then. In the early 1990s the accused was charged with further counts of offending against other women. The indictment included counts relating to the 1984 complaint. A stay was granted because there was evidence of actual prejudice arising by reason of this delay. A witness could not be located and the 1984 file was lost, and with it, witness statements. Doogue J also held, however:

It seems to me that it would be wrong for this Court to lend itself to permitting the prosecuting authority to pursue in 1992 a complaint made in 1984 and investigated and on the face of it deliberately not pursued.

[14]   Since R v T (supra) the Court of Appeal has stated in R v Ihaka CA442/91 22 June 1993, that an initial deliberate decision by the Police not to prosecute will not automatically give rise to a stay. Similarly in R v Drew (1984) 4 HRNZ 614 the Court of Appeal said at 623:

We are satisfied that the trial Judge’s findings were directly made on the evidence he heard and that there is no evidence to suggest that the Police were dilatory in their investigations or in the laying and relaying of the charges in October 1995, or that they manipulated or abused the Court’s processes. We are satisfied that the complainant did not unduly influence the relaying of the 1993 charge.

[15]    In R v B (1993) 11 CRNZ 174 a stay was granted by Tipping J. The accused was alleged by his daughter to have sexually abused her ten years before trial. The Police took no action when advised that there was insufficient evidence to prosecute. Two matters of actual prejudice had arisen in the interim. Certain records had been lost but, most importantly, the accused’s mother had died. It was alleged that she had been in the room when the indecency had occurred. Significantly, the Police had noted that the reason for the complainant to reactivate the complaint was that she  was seeking assistance from ACC for medical problems. Furthermore, the complainant had also demonstrated her unreliability by untruthfully saying she had become pregnant as a result of the alleged indecencies. Tipping J said at 180:

I consider that an earlier deliberate decision not to prosecute is unlikely on its own to be a ground for successfully alleging an abuse of process if that decision is later reversed in good faith. It is, however, part of the whole picture against which the ultimate decision must be made.

The applicant’s first ground - unfairness

[16]   The applicant has submitted that the Crown has not provided any explanation as to why the Police decided not to proceed in 1998. Nor has there been any reason given as to why the complainant decided to reactivate her complaint in 2003. It is submitted that, after being told that the matter was not to proceed in 1998, the applicant was entitled to accept that the matter was closed and that, as a result, he and his family could get on with their lives. There was, in effect, an estoppel situation created which, if the matter does proceed, would result in a substantial unfairness to the accused and his family.

[17]   The Crown’s response is that the applicant cannot point to any action by the Police in 1998 when the decision was made not to proceed, which could be said to have entitled the applicant to conclude that the matter was closed for good. In the circumstances, the only inference which can be drawn in relation to that decision is that, the Police on this occasion, reacted sympathetically to the complainant’s request. Quite apart from that, and looking at the Police’ position realistically, the prospect of a successful prosecution was slim, given they had at best a reluctant complainant and an interview by the applicant which provided only a “no comment” response together with a denial.

[18]   I am satisfied there is no basis for alleging any unfairness to the applicant based on the grounds advanced under this head. The Police are not infrequently  faced with complainants who have alleged offending in a family setting who later, wish to withdraw complaints. The emotional factors involved in such alleged offending are infinitely diverse and complex. Often considerations of possible coercion have to be considered. As the Crown submitted, the Police cannot afford to adopt any rigid response to a complainant wishing to withdraw a complaint. Each case has to be considered within its own particular context. Viewed in this light on the material advanced by the applicant, the Police decision cannot be regarded as being untoward in this case. I have the further view that, if the Police had elected to proceed with the prosecution in 1998 and, if this had failed, they could have been properly criticised for doing so given a realistic assessment of the evidence which was available to them at that time.

Second ground – certainty in the law

[19]   This ground is related to the first ground. Here the applicant submitted that, a key public role of the justice system, is to provide people with a sense of certainty. The applicant, having understood that he would not be charged, was entitled to carry on with his life in that knowledge. This did not happen because the Police, in counsel’s submission, neglected their duty in what was apparently a well meaning way – but which has a substantially detrimental impact for the applicant.

[20]   It was therefore submitted that to allow the prosecution to continue in the light of this conflict may have the effect of creating a dangerous precedent.

[21]   The conclusion was then drawn that, because of the neglect of duty, albeit well meaning, the delay cannot be regarded as solely complainant delay, hence the delay must be regarded at least in part as presumptively prejudicial.

[22]   Again I cannot agree with this submission. Certainly, as a general proposition, it must be accepted that within the total justice system persons who become subject to its procedures should be provided with certainty. So far as prosecutorial delay is concerned, the law is quite clear. Actual prejudice to the accused is required before the Court will step in and grant a stay. (See Fox v Attorney-General (supra), and Attorney-General v District Court at Kaikohe & Anor HC Whangarei CIV2004-488-033 17 June 2004).

[23]   In the present case, the complaint was withdrawn in 1998 when it was still in the investigation stage. There is no evidence to suggest that, at that point, any decision had been made to prosecute. In fact, no such decision was made. The reason was because the complaint was withdrawn. At that point, in my view there was insufficient evidence to proceed. Following the further complaint there was. First, there was a complainant prepared to proceed and, secondly, further evidence was obtained as a result of the interview.

[24]   Even if there was a decision not to prosecute in 1998 the decision to  prosecute in 2004 does not by itself automatically amount to an abuse of process. There are many examples where following intensive investigations the conclusion is reached that there is insufficient evidence with the result that no prosecution proceeds. However, at some later date, in some cases many years afterwards, further evidence is obtained which is sufficient to found a prosecution. This can occur, for example, following the advent of new investigational techniques which, when applied to pre-existing evidence, cast an entirely different light on evidence. I am unable to find any logical or legal basis for finding that an accused in such a situation is entitled on the basis of some abstract concept of certainty to conclude he or she is

somehow safe from any further investigation and charge when earlier investigations have not resulted in a prosecution.

Third ground – Police misconduct

[25]The applicant’s counsel submitted under this head:

[a]Rather than being untoward as submitted by the Crown, the Police action in not prosecuting in 1998 could more accurately be described as being “essentially improper and reflected a failure by the Police to carryout their duty”.

[b]“The Police in 1998 essentially had all the material that the Crown now in 2005 proposes to utilise to prosecute the applicant. It is uncharacteristic of the police that they did not pursue the case vigorously at the earlier stage. Normally, and in counsels experience, often a complaint is lodged with the police – often uncorroborated to any extent by the alleged offender, cf. the instant case – and then the complainant says they wish to withdraw the case, not because the complaint was untrue, but for (as here) reasons including a desire not to see the offender imprisoned.

[c]“Invariably in such a situation the police will continue to prosecute, simply because that is their duty. And in counsels submission they have in this instance neglected their duty. The effect has been to give the applicant a false sense of security, and to unfairly prejudice his position.”

[26]   Allegations such as these are easily made but, in this case in my view, they  do not bear close examination.

[a]I have already found that the Police conduct cannot be in any way regarded as improper.

[b]It is patently clear the Police did not have essentially all the information in 1998 which they have now. The additional evidence obtained in 2004 on interview, could, I suspect, be decisive in this case. Furthermore, I entirely disagree with the submission that it is uncharacteristic of the Police. I have also referred to this issue earlier but repeat that there is no characteristic conduct of the Police in such cases. Each case has to be determined in its own context. Mr Douch made it quite clear that, his experience of cases, where there has been an indication of withdrawal of a complaint by the complainant, is quite different from that of the applicant’s counsel. I might add, it is quite different from mine too. It is simply not correct to say that the Police are under a duty to prosecute any complaint received by them. Essentially the decision will depend on an informed assessment of the available evidence. In cases involving domestic offending, issues of humanity can also arise. Furthermore, as I have already indicated, the effect of the prosecution on a suspect in cases where the evidence is possibly lacking or unreliable, must be taken into account too.

Fourth ground – prosecutorial or complainant delay

[27]   The basis for this submission is the alleged failure of the Police to carryout their duty to prosecute in 1998, when in the applicant’s counsel’s submission this could, and should, have proceeded. I have considered and rejected the submission based on an alleged duty. So far as the facts of the present case are concerned, I cannot find any basis for finding the delay from 1998 to the present case could be said to be that of the prosecution, and for the following reasons:

[a]The Police decided, and in my view quite properly, not to proceed in 1998 with a prosecution.

[b]If a Police officer had decided at some point after then to review the file and then, without any further evidence being available, renew the prosecution, I consider the intervening delay could amount to prosecution delay.

[c]In this case this did not happen. The Police took no further action in this matter until after there was a further complaint from the complainant. Viewing the matter realistically, there was nothing they could and should have done in the interim.

[d]The sole reason why this matter has been revived is because the complainant has, for some reason, elected to do so. There is no information presently available to indicate why. Certainly there is none which indicates she may have some unacceptable ulterior motive for doing so. Whether or not she has is a matter which no doubt could be thoroughly canvassed at trial. The short point  as I see it is that, the Police were justified in not proceeding in 1998, and there is nothing about the present decision to do so which in any way leads to the conclusion that the Police were at fault in not proceeding earlier. I do, however, accept that any information regarding a complainant’s motives will be relevant : R v B. Similarly, I refer to  the words of Doogue J in R v S at 494 where he said:

17. I further accept that in certain cases delay by complainants, perhaps to serve their own purposes, may be relevant to the same issue: see R v Williams [1985] 1 NZLR 294, 309. In such circumstances the Court may wish to intervene to preserve the integrity of the Court system and the proper administration of justice, aside from any issue of unfairness to the accused.

[e]I add that, it appears to be clear that having received the second complaint, the Police had acted promptly and expeditiously thereafter.

Consequential prejudice

[28]   The first issue is whether in the face of the delay occasioned by the complainant’s action, there are nevertheless elements of prejudice arising as a result of that delay, which militate against a fair trial and to the extent that any convictions obtained could be said to amount to a miscarriage of justice.

[29]   The applicant points to the fact that, in the period 1998 until the present time, there have been two intervening factors:

[a]The death of the persons whom the applicant submits would have been available as material witness for his defence.

[b]His deteriorating health.

[30]So far as the first matter is concerned, the applicant submits:

[a]His mother who died on 17 December 2000 was the sister of the complainant’s mother. The two families saw much of each other. The mother was alleged to have been in close proximity on occasions when some of the offending is alleged and, in particular, when on one occasion the alleged indecent act took place in a car, the mother was driving. In addition it is alleged the mother could have given evidence regarding the complainant’s general credibility and the normality and warmth of the complainant towards the applicant. The applicant says that, had he known that these allegations would later be renewed, then he would have taken steps to record his mother’s evidence regarding these matters before she died.

[b]The applicant also refers to an uncle who died on 19 February 2002, and three other persons including his mother’s partner who have also died in recent times. All of these people, the applicant says, could have deposed to matters of opportunity or lack of opportunity for the offending to occur, and the attitude of the complainant towards the applicant. The result is, that he will be profoundly and unfairly disadvantaged if the trial proceeds without these persons being available as witnesses.

[31]   The Crown’s position is that there is ample authority to find that the mere absence of a witness in such cases is not by itself necessarily evidence of prejudice. I

was referred to R v Accused (CA 215/94) (1994) 12 CRNZ 500 at 503, where the Court said in a similar situation:

“As to the mother-in-law, it is the common experience of trial Judges that, in cases of alleged offending within the family circle, evidence of lack of opportunity does not carry great weight. Within the family setting there is always opportunity for abuse occurring unobserved by others in the household. In any event, it is speculative whether the mother-in-law would have supported the Appellant’s case.”

[32]As to the second matter, the applicant has deposed:

“I suffer from Osteoporosis, HNPP (a neurological disorder), and Asthma. I was stressed and depressed the first time the allegations were made, now, with the loss of my job (as a direct consequence of the allegations being raised again); I am suffering more from stress and depression than in the first instance. I have noticed that my condition of NHPP has worsened since 2003 (as a result, I believe, of being made aware that the complainant was bringing up the allegations again). As a result since then, I have increased my medication (Tegretol) to cope. NHPP is a neurological condition that effects [sic] the nervous system; it is a hereditary condition that has come through my mother’s side of the family. It is a degenerative condition that causes me to suffer epileptic type seizures (it is an epilepsy-related condition). It also causes loss of sensation and in any limbs that sustain long term pressure esp. hands and legs. These “go to sleep” (loss of sensation) for days on end.

The increased Tegretol dosage – which I take to combat the heightened risk of seizures (heightened by the litigation stress), tends to leave me feeling lethargic and somewhat detached. Annexed hereto and marked with the letter “C is true copy of a letter by my doctor setting out the conditions that  I suffer from and the medication that I take, also briefly referring to the stress and depression as a result of the complainant re-visiting her allegations.”

[33]   The medical certificate referred to, whilst referring to the conditions referred to and the medication prescribed, does not, so far as I can see, seek to make any prognostication as to the affect on the applicant’s ability or otherwise to defend the prosecution. Given that the onus of proving prejudice under this head lies on the applicant, I am unable to find, as was the case with Robertson J in R v Walker (1990) 5 CRNZ 519, that there is sufficient evidence to interfere with the prosecutorial process in this case.

[34]   Mr Douch’s principal submission in regard to both the above matters was, that in cases such as this, it is unrealistic to determine in advance whether  the absence of a particular witness will or will not produce prejudice or whether an

alleged medical condition would have the same effect. They are questions which can, and should, be left to be determined by the trial Judge who will have the advantage  of being able to make an informed decision in the light of the total context of the trial.

Conclusion

[35]   In R v B (supra) Tipping J summed up the approach to be adopted in cases such as this at p178:

In my judgment the authorities demonstrate that in the course of considering all the circumstances of the case the Court should remember, as a starting point, that there is no statutory period of limitation. The reasons for the delay and its consequences should be examined. As to the consequences, the key issue is whether the delay has caused the accused disadvantage of such a degree that his right to a fair trial has been put in jeopardy. If there is a serious risk of that the prosecution should generally be stopped. To continue in those circumstances, involving a serious risk of a miscarriage of justice, would in my judgment, normally amount to an abuse of the process of the Court.

[36]   Adopting the above approach the following matters appear to me to be relevant to determining whether in this case the delay has caused the applicant disadvantage of such degree that his right to a fair trial has been put in jeopardy.

[a]I am satisfied that the delay in this case is solely attributable to the complainant. I cannot see that the Police decision not to proceed in 1998 can be criticised following the complainant’s withdrawal. Nor can the decision to accept the renewed complaint in 2004 be regarded as untoward, particularly in light of the new evidence which emerged as a result of the further interview of the applicant.

[b]The fact that further evidence has now been obtained is in my view an important factor to be taken into account. Not only does it justify the Police decision to prosecute, it also serves to enhance the credibility of the complainant.

[c]The complainant’s action in not wishing to proceed in 1998 is, on the face of it, understandable. Importantly, she still maintained the truth of her allegations at the time of the withdrawal.

[d]Unlike the position in R v B, there is no suggestion that the renewed complaint was attended by any ulterior motives.

[e]The fact that the further evidence now obtained does materially corroborate some aspects of the complaint is a factor which dictates that the Court should be reluctant to stay this matter. However, it would be wrong to find that this factor alone should determine the outcome of the application. There still remains the issue whether in fact the delay, which occurred between 1998 and 2004, has caused the applicant disadvantage of such a degree that his right to a fair trial has been put in jeopardy.

[f]The obvious factor here is the death of the persons who could  possibly have deposed to matters relating to the applicant’s opportunity to commit the alleged offending, and the complainant’s general credibility and attitude towards the appellant. This type of evidence is really addressed to the difficult issue faced by an accused of having to provide some foundation to prove the negative i.e. that the offending did not occur. To some extent, however, the admissions now made by the appellant give the lie to such a defence. To the extent that the defence may be based on consent I find it difficult to see that general evidence as to the complainant’s attitude to the applicant would be of any great assistance. She was aged between 5 and 15 during the period the offending was alleged to have occurred. In short, for the reasons referred to in R v Accused (para [31] supra) there has to be a real question as to whether the evidence which might have been adduced from the persons now dead would have had any great probative value. It is not possible, however, to reach any firm conclusion on that point. It is possible, however, to conclude that the issue whether the dead persons might have been able to revive

probative evidence is something which could be determined at trial. For example, in relation to any particular alleged offending, who, if anyone, was present, and what was the likelihood of one or more of those persons being able to observe an event if it occurred as alleged by the complainant.

[g]There is as well another matter, namely, whether other persons who are still available who could give evidence similar to that which the applicant suggests could have been given by the dead persons. Once again, that is an issue which could be determined at trial.

[37]   Having considered these matters I have concluded that, in view of the further evidence now available, the Court should be reluctant to grant a stay in this case and that the question as to whether the applicant is prejudiced in his defence by the absence of witnesses who have died during the period of delay can, and should be, determined after that issue has been addressed in evidence at the trial.

[38]   The trial Judge will be in a position after hearing the complainant’s evidence to assess whether any of the deceased persons could have given evidence as to opportunity or the lack of it. Perhaps also whether there are other persons who can still give evidence on this aspect and as well the nature of the complainant’s disposition towards the applicant. Similarly, if the applicant’s medical  condition does raise any concerns, this too can be assessed with the assistance of any relevant medical opinion at the time.

[39]   I note that in R v B, Tipping J at 179 said the unavailability of a witness (who was said to be sitting on the side of a bed when the alleged indecencies were taking place) was “at least potentially, actual and specific prejudice resulting from the delay in bringing the changes”. That may indeed be the case here also. However, and significantly, in R v B it was the combined effect of the delay, unavailability of the witness and “doubt about the complainant’s motives for now wanting to resurrect the matter” (p181) which led Tipping J to stay the proceeding. That later concern is not present, as yet, in this case.

Result

[40]   For the foregoing reasons, I have concluded that the applicant has not discharged the onus on him, and accordingly the present application should be dismissed.

Suppression

[41]   There are references in this decision to matters which could identify the complainant. There will accordingly be an order suppressing the name of the applicant in this decision.