Attorney-General v Smith[1998] QCA 460

COURT OF APPEAL

de JERSEY CJ

McPHERSON JA

CHESTERMAN J

CA No 342 of 1998

THE QUEEN

v

EDWIN JAMES SMITH Respondent

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE 

DATE 03/12/98

JUDGMENT

THE CHIEF JUSTICE:  The Honourable the Attorney-General appeals against a learned District Court Judge's order made pursuant to section 592A of the Criminal Code that proceedings on two indictments be stayed.  We have had the advantage of comprehensive written submissions on behalf of the Attorney and on behalf of the respondent and substantial opportunity to give detailed considerations to those submissions and to the contents of the record prior to coming to Court.  We have also had the benefit this morning of oral elaboration upon those submissions and the opportunity, of course, to give further consideration to those matters.

I have reached a view as to the disposition of this appeal which, I am satisfied, will not mature with further time, and it is important therefore that that view be expressed now so that the parties know where they stand.

The first indictment dated 23 February 1998 alleges seven sex offences alleged to have been committed upon one SVL, then a boy under the age of 14 years.  Those offences were allegedly committed between 15 January 1959 and 14 January 1963, that is between 35 and 39 years prior to the indictment.  There were six counts of indecent dealing and one of attempting to have carnal knowledge against the order of nature. 

That indictment also contained two counts of indecent dealing in relation to one GR, also then under the age of 14 years.  Those offences allegedly occurred between 26 March 1959 and 25 March 1966, that is between 32 and 39 years prior to the indictment.

The offences allegedly occurred at Silky Oaks Orphanage at Manly, Brisbane.  Over the relevant periods the complainant, Mr SVL, was aged between 10 and 14 years, and the complainant, Mr GR, between 8 and 14 years.  The accused, the respondent, was born in 1926, so that when the offences allegedly began he was 33 years old. 

The second indictment also dated 23 February 1998 alleges that between 14 June 1958 and 13 June 1962 the respondent indecently dealt with one BVL, a girl under the age of 16 years.

The intended prosecution case comprises the uncorroborated evidence of the complainants.  None of them had made any complaint to the authorities in the years following their leaving the orphanage.  They gave explanations as to why that was so.  Mr SVL explained his failure to complain by reference to considerations of shame and concern that he would not be believed.  Mr GR put it down to fear of recrimination.  The female complainant said that to complain would have been inconsistent with the way they had been brought up at the orphanage.

There was no suggestion of any relevant delay on the part of the prosecuting authority.  By the time of his application for stay brought before the District Court Judge the respondent was 72 years old. 

He relied in part on a report from his general practitioner which having listed various problems with his health expressed the view that,

 "He would have extreme difficulty in accurately recalling details of events in the past and as such would have difficulty in accurately instructing his legal representatives of events which, I believe, are supposed to have taken place almost 40 years ago."

The matter was put before the learned Judge on the basis that a fair trial could not be had because of the combination of these circumstances.

1. The length of the period which had elapsed since the commission of the alleged offences, that is, 35 to 40 years.
2. The lack of specificity in the dates of the alleged offences which, taken with the delay, it was said excluded any real possibility of securing, for example, evidence of any available alibi.
3. The death and unavailability of persons then associated with the orphanage who may have been able to give evidence even if only as to peripheral issues.
4. The absence of documentary records relating to the respondent's own employment at the orphanage and as to the complainants covering their period at the orphanage and other matters concerning their conduct, for example, and
5. The circumstance that the respondent would have real difficulty recalling the period in time covered by the allegations.

The principles regulating the granting of stays in such circumstances are well established by Jago v The District Court of New South Wales (1989) 168 CLR 23 at 34, 49 and 60 and need not be revisited here beyond the acknowledgment that to grant a stay of criminal proceedings is an exceptional step justified only where the Court is satisfied that an unfair trial will ensue; that there is no other available way of securing a fair trial.

In Jago, Justice Brennan at page 49 made the point that interests other than those of the accused must be considered, the interest of the community and the interests of the alleged victim.  This learned Judge concluded that any trial at this stage would be unfair.

In appealing against his order, the Attorney-General accepts that to succeed he must demonstrate that the Judge erred in one of the ways the Court regards as sufficient to disturb a discretionary judgment, that is, he acted on a wrong principle, took an extraneous consideration into account, ignored a relevant consideration or mistook the facts.  See The Queen v Glennon (1992) 173 CLR 592 and House v The King (1936) 55 CLR 499 at 505.

Early in his judgment the learned Judge observed that for various reasons accused persons ordinarily confront difficulty dealing with these allegations even where the trial may occur soon after the events.  He referred to the circumstances that there will often be no witness other than the accused and the complainant and of the frequent absence of corroborative evidence and evidence of fresh complaint.

He then referred to particular circumstances of the present case.  The extraordinary length of the delay, there being no other witness to the alleged events, the lack of relevant documentary records, the death or unavailability of other employees of the orphanage who may have thrown some light onto aspects of the matter, the lack of precision in the identification of the dates of the alleged offences and that the complainants had given, as he found, "no persuasive explanation" as to why they had not complained to the authorities once they had left the control of the orphanage and during the substantial periods of their adulthood.  He then observed:

 "It seems to me to be indisputable that the burden cast upon the accused in those circumstances is very much heavier than would ordinarily be the case even in cases where there is some delay but of less magnitude than the delay in this case."

Counsel for the Attorney first submitted, in his written material, that His Honour thereby fell into error.  He developed the submission in this way:

 "It is true that the allegations relate to conduct many years ago.  However, prosecutions for sexual offences committed 10 to 20 years ago are not uncommon as the Court's own experience would demonstrate.  The problems in this case are no different from the problems that other accused charged with offences of some age commonly have to confront at trial.  Any offence from about 10 years and upwards in age not unusually can be expected to have to confront problems of missing records and/or unavailable witnesses, a problem that also works against the prosecution."

I do not accept that in his conclusion His Honour erred.  All he is saying is that in the more usual case where the trial follows soon after the alleged offence or where if there has been delay it is very much less than this, there will often, nevertheless, be difficulty for an accused for the reasons he had earlier expressed. 

The difficulty, His Honour suggested, is very much greater where the delay has been of these obviously extraordinary proportions taken with the additional consequential problems associated with lack of witnesses and documents.  I consider that His Honour's approach was reasonably open.

Counsel for the Attorney next contended that His Honour erred in giving, "inappropriate weight" to the absence of a reasonable explanation for the lack of complaint and to the significance of the lack of witnesses and records. 

As to the Judge's conclusion that the explanation given by the complainants for their failure to complain was unpersuasive, counsel submitted that such reasons were not uncommon.  That may be but His Honour's view was no doubt based, at least in part, on his having read and considered their evidence and we should therefore be slow to reject his view on that matter and it would be wrong, in principle, to go on to disturb a following discretionary judgment because of any inclination on our part to differ in that area were that to be the case.

As to lack of witnesses and records, to conclude that the respondent would be prejudiced does involve speculation but the possibility that such evidence, if available, could have helped the defence is nevertheless not irrelevant to this situation, a matter to which I will return.

Counsel ultimately submitted in his written material that the age of the case - its essential feature, I suppose, provided no ground for staying the proceedings.  In other words, that the Judge erred in principle in relying substantially on that feature as to my mind he would appear to have done.  As put in counsel's submissions,

 "It is submitted that even having regard to the age of the allegations there was, in reality, nothing unusual about the problems that confronted the accused in this case.  All the complaints that the respondent made can exist in cases of some age involving allegations of sexual offences.  At the trial the prosecution would be bound to prove its case beyond a reasonable doubt.  Before the jury the defence would be able to make much of the problems of evidence relating to events alleged to have occurred many years ago.  The conduct of stale cases presents difficulties but they are by no means unknown to the Court."

To note that cases of some age, from time to time, go to trial with accused persons bearing the consequential disadvantage is for the purposes of this appeal really by the way.  The current question is whether His Honour erred in giving substantial weight to the circumstance of delay.  In my view, it cannot possibly be said that he did. 

Orally, Mr Rutledge for the Attorney drew attention to His Honour's statement that the persons in charge of the home at the time, Mr and Mrs Alexander are dead.  Mrs Alexander was the registered carer.  In fact, Mrs Alexander is not dead.  She is one and the same as a Ms Jean Winn.  His Honour was told of Ms Winn by counsel for the then applicant who, from the committal evidence of a police officer, read this passage to His Honour:

 "The only witness who would be alive today that may be able to support anything that was happening at the time would be Jean Winn who is a witness in these matters."

His Honour must be taken to have been aware of that but not that Ms Winn was, in fact, Mrs Alexander.  The Judge went on to mention that Mr Abraham, an employee at the time, was still available but he did not mention Ms Winn.  The question now for us is whether this inaccurate statement materially effected the Judge's conclusion.

Ms Winn is now in her seventies and one can only speculate as to what she may say.  His Honour said:

 "It is of importance in cases such as this to determine whether or not evidence supporting the allegations of the complainant is available."

It is clear to me that the feature which predominantly affected the Judge's conclusion was the extraordinary length of the delay, the absence of complaint and any persuasive explanation for that.

As to the absences of witnesses and the significance of the existence of Ms Wynn, the point is, as I have said elsewhere in these reasons, relevant, but how a witness like that could affect an outcome is ultimately speculative.

Neither counsel before His Honour took the step of putting any statement by Ms Wynn into evidence, and the only reasonable inference is that her evidence would be neutral, not significant to the outcome either way.

The circumstance that the Judge made a factual error does not mean that his conclusion is necessarily vulnerable.  The materiality of the error must be assessed. 

Here, allowing for the contrasting, contributory significance of the relevant considerations, and the ultimately speculative character of the possibly supporting evidence this witness could give for one side or the other, I am not satisfied that the error His Honour did make is material to his conclusion.

Mr Rutledge informed us that he had not been able to identify any case which had gone to trial concerning allegations of this character of comparable age to the age of these.  Because these alleged events are so extraordinarily old of course does not exclude a prosecution now, but it obviously gives real cause for concern as to whether a fair trial can be had. 

The considerations properly listed by His Honour, and I exclude for the moment the factual error which has been identified, to my mind gave ample support for the conclusion to which he came which should not, in my view, now be disturbed, particularly bearing in mind the constraints on this Court which is called upon to disturb the exercise of discretionary judgment below.

I consider it would be wrong for this Court to interfere.  The Judge correctly apprehended the law.  He applied it to relevant considerations and facts with one exception, a circumstance which I consider, because of its speculative character, should not reasonably be taken to have contributed materially to the learned Judge's conclusion.  For these reasons I would dismiss the appeal.

McPHERSON JA:  I agree.  In particular, I agree that it has not been shown that any error committed by the judge would have materially affected his conclusion in the matter.

UNIDENTIFIED PERSON:  What about the victim?  What about the victims?

CHESTERMAN J:  I also agree.

THE CHIEF JUSTICE:  The appeal is dismissed.