R v ZSK[2006] QDC 16

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 15 December 2005 an indictment was presented in this court against the defendant alleging one count of rape and five counts of indecent treatment of a child under 12.  It has not yet come to trial, but the pre-trial recording of the evidence of the complainants is listed to take place in the immediate future.  The defendant has now applied pursuant to section 590AA of the Criminal Code for an order that Count 1 of the indictment, the rape charge, be stayed, on the basis that the continuation of the prosecution of that count^[1] against the defendant would be fundamentally unfair in a way which cannot now be avoided or remedied.

2. [2]
   The background to the matter is that the complainants, twin sisters, were placed in a foster home on 6 January 2001.  Count 1 is an allegation that on a date unknown between 5 January 2001 and 6 March 2001 at that foster home the defendant raped one of the complainants.^[2]  Evidence of this offence comes effectively only from that complainant.  On two occasions she made statements to the police which were recorded and are available to be led in evidence at the trial under section 93A of the Evidence Act.  In the first statement on 9 August 2003 there was a complaint of touching on the vagina, but no complaint of rape.  When asked whether the defendant had touched her with any other part of his body she replied no.

3. [3]
   In the second tape, made on 15 September 2004 for the purpose of narrowing down the time frame, at page 5 she was asked about “the last time that it happened”, and said she thought it was the week before she left.  She continued that she could remember one specific time, she thought it was the week before she left, and said something about that time, and then continued “and then the first time I didn’t know what he was doing because I was just new there and he said for me to, I think it was a week after a week that I’ve been there, he’s…started doing it to me”.  She was then asked whether she was speaking about a week before she left or a week after she got there and she replied, “A week after I got there,” and when asked whether that was the first time that it happened she replied, “Yep, I think so, yeah.”  Then when asked what he actually did on that occasion she described sexual intercourse, in some detail.  On page 7 she was again asked whether this was a week after she arrived there and she replied, “Yeah”.

4. [4]
   On the basis of this the police charged the defendant with committing the offence between 6 January and 20 January 2001^[3] and he was committed for trial on that charge.  Pursuant to the statutory requirement^[4] he gave notice of an alibi in respect of that period, and the Crown now accept that the complainant has an alibi from 4 January to 20 January 2001, and could not have committed that offence during the period originally charged, namely 6 January to 20 January 2001.  Hence the longer period charged in the indictment when it was presented.

5. [5]
   It was submitted for the defendant that the widening of the dates prejudiced him in his defence by depriving him of an answer other than a general denial, apparently as a response to his confirmed alibi. The purpose of the notice of alibi was to afford the opportunity for the alibi to be checked, but that has had the effect of confirming that the alibi is genuine. Had it not been for the notice, evidence of the alibi given at the trial would have been a complete answer to the complainant’s allegations, in terms of the section 93A tapes.  It was submitted that the change in the particulars of the offence, as to the dates, was not supported by any additional evidence available to the Crown, and was simply an arbitrary response to the alibi.

Particulars of dates

6. [6]
   The time and place at which the offence is alleged to have been committed are not elements of the offence, but they are matters in respect of which such particulars as are necessary to inform the accused person of the nature of the charge are required to be given: Criminal Code section 564(1).  The date is not relevant to the offence because the relevant act will constitute the offence whenever it took place.  That does not mean that the date or period stated in the indictment is irrelevant.  That is because of the defining character of particulars; the accused is entitled to prepare his case and go to court on the assumption that the evidence will be related to the date alleged unless he has notice to the contrary, and if the date is departed from and he is disadvantaged he should have an opportunity to deal with the change:  R v Swan (1987) 27 A Crim R 289 at 290 per Kneipp J.

7. [7]
   In the present case, on the basis of the only evidence currently available, the offence occurred about a week, or perhaps about two weeks, after the complainant arrived at this particular foster home. That was at a time for which the defendant has what the Crown accept is a good alibi. Accordingly the offence could not have happened at the time identified by the complainant on the section 93A tape.  This tape is the evidence which the Crown proposes to lead at the trial in support of Count 1; at the moment the Crown has no evidence to contradict this, or to show that the events described by the complainant in that tape in fact occurred at any other time.

8. [8]
   Of course, there may be more evidence from the complainant at the trial than the evidence now available in the section 93A tape. If that does not differ from the evidence in the tape, on the authorities the defendant would have to be acquitted even on the different particulars, because the evidence would still be countered by the alibi. The real question is whether the prosecution should continue to allow the Crown to seek to vary or weaken the evidence as to the time of the offence^[5] to create a situation where there is some evidentiary basis for the case to go to the jury.  That would be necessarily a response by the Crown to the notice of alibi, and an attempt to change its case to avoid the alibi.

Authorities

9. [9]
   A similar situation to this was considered by the Court of Criminal Appeal in R v Jacobs [1993] 2 Qd R 541.^[6]  The defendant was charged with a number of drug offences, including two counts of supplying between 1 December 1989 and 31 January 1990.  The particularisation was based on evidence at committal by the two witnesses who could testify in respect of these counts, to the effect that they occurred close to Christmas 1989.  According to Ambrose J (page 548), at the trial the period during which those offences were allegedly committed was specifically defined to a fortnight, from 18 December 1989 to January 1990.  However, the appellant proved he was out of Australia during this period; Ambrose J said that he had an irrefutable alibi for the period identified in the evidence.

10. [10]
    Ambrose J took the approach that it was not open to a jury to reject that part of the evidence of those two witnesses as to the time within which the offences were committed but nevertheless convict on the basis of their evidence of the fact of supply.  His Honour adopted the majority opinion in a New Zealand decision of R v Dean [1932] NZLR 753 at 763 that, where the whole of the evidence is that the offence was committed on a particular date and on no other, then the date has been made an essential part of the offence, so that where there is an alibi in respect of that date the jury cannot convict unless they reject the alibi.  Accordingly he considered that the conviction on these counts was unsafe and unsatisfactory.

11. [11]
    Dowsett J also concluded that the evidence was not sufficient to support convictions in respect of these counts:  page 561.  His Honour said that the Crown had failed to prove the offences occurred in the period particularised in the indictment, and at page 567 continued:

“It is, in my view, not possible simply to say in this case that the offences may have occurred at some other time.  The Crown made its election at the time of preferring the charges in the evidence.  Crown witnesses, although imprecise, clearly put the offences within the time frame alleged in the indictment…The case was conducted in such a way that it would be unjust to allow a conviction for an offence when the offences alleged in the indictment can clearly not have occurred.  It is not to the point to say that he may have supplied on other occasions outside that time frame.  Such supplies were not the offences for which he was being tried.”

12. [12]
    The third member of the court, Derrington J, said at page 544 that:

“The nature of the allegations in the Crown case may be such that the prosecution is fixed to a certain date and it would be wrong to countenance any departure from that point when it is especially relevant to proof, alibi and the like.”

13. [13]
    On the following page his Honour added:

“Where as in the present case an alibi is advanced by way of defence, fairness may require that an accused person is not disadvantaged by any vagueness or inaccuracy of the Crown case.  It is impossible to put forward a precise rule because the respective values will vary according to the circumstances of the particular case.  For example the evidence of a complainant may be very strong and supported by powerful corroborative evidence but may be vague or mistaken as to the date as to which the accused person has a perfect alibi.  It would be wrong in those circumstances that such a strong case should perish upon a defect of this kind.  The answer to this need for flexibility lies in the intervention of the trial judge at the trial or in the verdict of the jury properly instructed so that the importance of the date to the prosecution proofs and any defences can be afforded suitable weight in the result.  Where for example such vagueness or inaccuracy were such as to deprived an accused person of a reasonable opportunity of establishing an alibi which may reasonably be open, then the jury should be warned accordingly in strong terms.  However, a guilty person should not be offered an escape if after being appropriately warned the jury is satisfied beyond reasonable doubt of such guilt simply because essential Crown witnesses as to time may prove to be inaccurate in their recollection of the notoriously difficult task of temporal location of past events.”

14. [14]
    His Honour was of the view that because of the passage of time, the difficulty of identifying the date of events in the past and the modest intelligence of the witnesses involved it was open to the jury to take the view that their evidence of dates was imprecise and even erratic but not destructive of their other evidence:  page 546.  He regarded the summing up as providing an adequate warning and an appropriate identification of the relevant issues, and would not have set aside the conviction on Counts 2 and 3 on this ground.  Accordingly it seems to me his Honour’s judgment was a dissenting judgment.

15. [15]
    It is clear that on the approach adopted by Derrington J this application must fail.  It would be open on his Honour’s approach for the jury to accept that the complainant in the second section 93A tape was speaking about an event that had actually occurred but must have been mistaken when she put the event as occurring as early as a week after she arrived.  But as I say that was a dissenting view, and it must be taken to have been rejected by the majority of the court.

16. [16]
    The decision in Jacobs was cited by Mackenzie J in Paulger v Hall [2003] 2 Qd R 294 at 296 where he said, of the case that court was considering where it was held appropriate to allow an amendment to the particulars of dates stated in a complaint, that “it was not a case where the prosecution case was fixed to a certain date by the evidence, or where the evidence was that the offences were committed during the period alleged in the charges and no other:  R v Jacobs [1993] 2 Qd R 451.”  I have not been able to find a later Queensland decision where Jacobs was analysed in any detail.

17. [17]
    Jacobs was mentioned by the Court of Criminal Appeal in South Australia in R v H (1995) 83 A Crim R 402.  In that case the facts were complicated, but for present purposes it is sufficient to say that at a trial on a charge of rape alleged to have occurred about 10 years earlier the complainant gave evidence that the offence occurred on a particular date, on the basis that it was three days before she commenced particular employment, the date of which was proved by a document:  page 405.  The defence case consisted of evidence of alibi.  No alibi notice had been given and the prosecutor objected to the evidence but the evidence was allowed to be led and the trial was adjourned to enable the prosecution to investigate the alibi.  The next day the prosecution applied to have the dates amended, to refer to a period which at that stage was unsupported by evidence, but extended to about a week after the period for which the appellant had an alibi.  The defendant objected to this amendment but it was allowed and in response defence counsel sought a mistrial.  That was refused and the trial was adjourned to a date to be fixed.

18. [18]
    During that adjournment there was a further statement made by the complainant to the police, to the effect that she now said that the offence had occurred at a completely different time, indeed the following year. The trial then resumed, and on this occasion the prosecution sought a mistrial.^[7]  That was opposed by the defence, but accepted by the trial judge.  Subsequently there was an application for a stay of proceedings on the ground that to allow the matter to proceed would be an abuse of process, which was rejected.  Ultimately the appellant was tried and convicted.  However an appeal was allowed, on two grounds.  The first was that a continuation of the prosecution after the first aborted trial was an abuse of process of the court, so that the earlier application for a stay ought to have succeeded.  The second was that in all the circumstances the evidence of the complainant was so unreliable that the conviction was unsafe and unsatisfactory.

19. [19]
    As to the former, there is what seems to me to be a helpful summary of the law in relation to the significance of dates in charges commencing at page 410, in the course of which Jacobs is cited and part of the judgment of Derrington J at page 544 is cited.^[8]  Mulligan J with whom the other members of the court agreed said at page 411 that the appellant faced charges on the basis of very specific particulars as to dates.  This was not a case where the evidence did not support the particulars; rather the evidence did not depart from them:  page 412.  In response he had called evidence to prove conclusively that he could not have committed the offence as particularised and then closed his case.  The further amendment to the particulars ought not to have been allowed, and on the evidence as it stood, verdicts of guilty could not be justified.^[9]  He continued:

“The appellant was denied verdicts of not guilty despite having participated in a trial on the ground chosen by the Crown which had not altered until the trial was all but over.  In my view, there was no ground to declare a mistrial…I think it was unfair, unjust and oppressive to put the appellant on trial again to meet a change of story of the woman…If the trial had proceeded to completion, the accused would have been acquitted.  In the circumstances it was unconscionable that there should be a second trial.”

20. [20]
    He concluded that it would be oppressive and unjust to make him stand trial again and the indictment ought to have been stayed. The second ground was also successful, on the basis that the conviction was unsafe and unsatisfactory in the light of a number of matters which I need not set out, but which amount to a very strong case, much stronger than anything immediately apparent here, for doubting the reliability of the complainant.

21. [21]
    As to the latter ground, I think it is clear that I cannot at this stage arrive at the conclusion that any conviction of the defendant on Count 1 would be unsafe and unsatisfactory.  That essentially involves a conclusion as to the credibility of the complainant, which is a matter initially for the jury, and subsequently for the Court of Appeal.^[10]  It is not something for a trial judge to assess in relation to a submission of no case to answer, and I think therefore it is not a matter for me to assess on an application before trial under section 590AA.  If an order is to be made in this case, it must be on the basis that a continuation of the prosecution in respect of Count 1 amounts to an abuse of process and therefore the indictment in that respect should be stayed.

22. [22]
    The difference between the situation in H and the present case is that in the present case the defendant has given the notice of alibi which was apparently required under South Australian law but not given by H.^[11]  If the present appellant had not given a notice of alibi, presumably the same thing would have happened in the present case as happened in H.  At the trial, the accused would have been entitled to be acquitted.^[12]  The question is whether the fact that the notice of alibi was given in the present case, so that the difficulty has emerged, and the Crown has sought to respond to it, before any trial makes a difference.

23. [23]
    The proposition that it does make a difference is an unattractive one. There is good reason why an accused should be required to give notice of an alibi, and it would be undesirable if the law operated in a way which provided an advantage to an accused who did not comply with the requirement to give the notice which was denied to an accused who did comply. If there is to be a distinction in the outcomes, the position of the defendant who has not complied with the requirements of the statute ought to be worse. On the other hand, much of the reasoning in support of the stay application in H is based on the proposition that it was too late in the trial for the Crown to change the basis upon which the case was brought.  The conclusion that the application for a stay ought to have succeeded was really based on the proposition that the earlier trial ought to have led to a verdict of acquittal, and that is not the situation here.

Notice of alibi

24. [24]
    The requirement in section 590A to give notice of an alibi operates at a relatively early state; the prescribed period is defined in subsection (7) as the period of 14 days after the date of committal for trial of the accused person.  Commonly that will mean that a notice of alibi will be required to be given before any indictment is presented, so that in practice the notice would generally have to be given by reference to the date or period on the basis which the defendant was committed.

25. [25]
    In H the fact that the notice required by the section was not given was mentioned, but there was no discussion of its significance.  Presumably the court did not think it was a factor of any importance in relation to the issues that had to be decided.  The purpose of the notice seems to be to give the prosecution the opportunity to investigate the alibi and if possible lead evidence to contradict it.  Hence generally if a notice is not given at the proper time the appropriate course is to give the prosecution the opportunity to investigate the alibi, even if this means an adjournment of the trial:  Cooper v R (1979) 69 Cr App R 229 at 233.^[13]  There is nothing to indicate that the purpose of the legislature in enacting section 590A was to enable the Crown to respond to the alibi by changing the case that was brought against the defendant, by reference to the particularised dates of the charges or by leading at the trail evidence difference from that on which the accused was committed.  If alibi evidence is sufficient to give rise to a reasonable doubt as to the guilt of the accused the accused is entitled to be acquitted:  Palmer v R (1998) 193 CLR 1.  If the alibi is accepted as clearly correct, a fortiori.

26. [26]
    In my opinion the fact that the indictment now contains a spread of dates which is wider than the dates in respect of which the defendant was committed, after the giving of the notice of alibi, is analogous to the position which arose in H after what was held to be the inappropriate amendment of the particulars, and at the time when there was the application to the Court to stay the proceeding.  At that stage, the nature of the alibi had been long since known to the prosecution, and the information then presented contained dates which were different from the period covered by the alibi.  That application was in respect of the forthcoming trial on that information.  The decision of the judge who heard and rejected the stay application was said by the court to be wrong.

27. [27]
    Further, in my opinion it would be wrong for an accused to be disadvantaged by complying with the requirements of section 590A, in terms of the operation of the principles discussed in H.  It would be undesirable if an accused who did not comply with that requirement would be in a better position in terms of obtaining a stay, or indeed in terms of obtaining a verdict of acquittal, than an accused who had given the notice.  That cannot have been the purpose of the legislature when introducing the requirement of the notice.

28. [28]
    I have not been able to find a case where H has been referred to in Queensland, or for that matter elsewhere, but it is a decision of a court deserving respect, the reasoning is persuasive and it is consistent with the majority decision in Jacobs.  It is the closest authority I have been able to find in relation to this particular case.  In the circumstances therefore I am prepared to follow the decision in H.  If the circumstances in the present case involve some extension of it, the extension is appropriate and desirable and I am prepared to make that extension.

Conclusion

29. [29]
    I accept that a stay should only be granted in strong and unusual circumstances, but it is appropriately granted if the continuation of the proceedings would amount to an abuse of the process of the court.^[14]  On the authority of H, in my opinion it would amount to an abuse of the process of the court for the prosecution to continue in relation to Count 1 in circumstances where the Crown accepts that the alibi of which notice has been given is sound.  On the evidence currently available the defendant is bound to be acquitted, so that the continuation of them on that evidence would be oppressive and vexatious, so that they should be stayed.^[15]  It is not a legitimate purpose of the notice of alibi for the Crown to change its case in response to it, by leading (or hoping to lead) different evidence from the complainant as to the time of the offence.^[16]  For the prosecution to continue in furtherance of that purpose would also be an abuse of process.  Accordingly I order that the prosecution of the defendant in respect of Count 1 of the indictment presented 15 December 2005 be stayed.