R v Cabo[2007] QDC 265

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application by Jacobus Theodouris Cabo for a Ruling under s 590AA Criminal Code that all further proceedings on Indictment No. 153 of 2006 be permanently stayed.  The background to the application can be briefly summarised as follows:

1. A
   This matter was listed for trial, with Mr Gundelach as Crown Prosecutor and Mr Seaholme as Defence Counsel. Mr Gundelach indicated to Mr Seaholme that he had doubts about the veracity of the complainant and invited MrSeaholme to make a submission to the Director of Public Prosecutions.

2. B
   Mr Seaholme agreed to do so, on the basis of an undertaking from MrGundelach that the submission would not be used to ‘strengthen the Crown case.’

3. C
   A submission was sent to the Director which included detailed material additional to the matters disclosed in the conversation between Mr Gundelach and Mr Seaholme, and indeed details of certain events, namely, the death of the complainant’s grandmother; the time the complainant’ssisters were at TAFE; the date of a cousin’s birthday party.

4. D
   The Director of Public Prosecutions decided to continue with the prosecution.

5. E
   Mr Andrew was briefed to prosecute. He had a conference with the complainant at which (it would seem) he put to the complainant that the dates which she had given were wrong, and he put to her the dates in the letter to the Director, and she responded: ‘that sounds right.’ Mr Andrew amended the indictment to change the dates of the alleged events.

6. F
   The complainant gave evidence at a trial, during which she adopted the dates revealed in the letter to the Director. That trial commenced on 21 November 2006, but did not proceed to conclusion.

2. [2]
   Affidavits have been filed by Mr Gundelach, Mr Seaholme, Mr Andrew, Ms Hudson (the Crown clerk who attended the conference between Mr Andrew and the complainant).

3. [3]
   I have received written submissions from Mr Hunter on behalf of the applicant, and from Mr Butler SC and Mr Kinsella on behalf of the respondent. Mr Eberhardt appeared on behalf of the applicant at the hearing.

4. [4]
   Counsel for the applicant submitted that the action ought to be permanently stayed because the disclosure to the complainant of the matters in the letter to the Director has resulted in manifest and irremediable unfairness to the defendant in the conduct of his trial.

5. [5]
   In essence, the submission of Counsel for the applicant is that the contents of the letter to the Director should not have been disclosed to the complainant and the impact of that disclosure on her evidence at a future trial is such that it is unquantifiable.

6. [6]
   There are a number of matters which are not in dispute, as follows:-

1. A
   The credibility of the complainant is a central issue in the trial. Counsel for the applicant referred to the decision of the Court of Appeal of Queensland of Mark Richard Lawrence [2001] QCA 441, per White J. He submitted that:

‘Effectively to have armed the central witness with the means of diffusing a number of very serious bombs that the defence were sitting on deprived, not just the defence … of the forensic opportunity to cross-examine her with the benefit of surprise, but also denied the jury the opportunity to see how she would react when, put on the spot as it were, about central aspects of her allegations.’

2. B
   The submission to the Director was solicited by Mr Gundelach on the basis that it would be presented to the Director and supported by MrGundelach in person.

3. C
   The Director was to make the decision as to whether the Prosecution would proceed.

4. D
   Mr Seaholme would not have disclosed the defence case but for the representation of Mr Gundelach that it would ‘not be used to strengthen the Crown case.'

5. E
   Mr Andrew was apparently not made aware of the basis upon which the submission had been provided to the Director.

6. F
   Mr Andrew raised with the complainant some of the matters in the submission. This resulted in: (a) The complainant changing her evidence. She gave evidence-in-chief inconsistent with the dates from the old indictment but consistent with the dates in the new indictment; and (b) MrAndrew amending the indictment before the Crown Opening.

7. G
   There is no record of exactly what was discussed between MrAndrew and the complainant at the conference.

8. H
   It is not necessary for me to decide whether the conduct of any Counsel involved in this matter was appropriate in terms of ethical standards.

9. I
   It is also not necessary for me to decide whether the undertaking given by Mr Gundelach was binding on Mr Andrew.

10. J
    My decision involves the impact of the disclosure by Mr Andrew to the complainant, and whether this precludes a fair trial for the defendant.

7. [7]
   Mr Eberhardt submitted that Mr Andrew could have simply conferenced the witness without telling her of the contents of the submission, and asked her what she could actually recollect of the dates of critical events. Had Mr Andrew ‘questioned her blind,’ then three responses from the complainant were possible. Firstly, she could have said, ‘Look, I’m really not sure when it happened. The only thing I’m sure of is that it was about four weeks after my grandmother died, whenever that was.’ Secondly, ‘Look, I’m not even sure it happened four weeks after my grandmother died, but I know it was in around about September, October, November.’ Thirdly, ‘I definitely remember that it was in October. I know that it was after my grandmother died. I know that my father was back from visiting relatives in Victoria consequent upon that fact.  But I also know that it was in October because I can link it to a particular event which I can put as being a date, say, for example, 7 October.’

8. [8]
   He submitted that on the first of these two options, Mr Andrew could quite properly have amended the indictment to include a broader range of dates based upon her uncertainty, ‘without tipping her off to what the defence case was’ (T8).

9. [9]
   I agree that it would seem that Mr Andrew might have conferenced the complainant differently, but it must be remembered that what was said at the conference remains unclear.

10. [10]
    Mr Eberhardt submitted that ‘it is impossible to know what flow-on effects that [disclosure of a submission] had in terms of blunting, or even neutering the defence attack on her credibility’ (T11). He submitted that the complainant may well have committed herself (in cross-examination or indeed in the conference) to the original dates by reference to other events which could then effectively prove that her assertions were not true.

11. [11]
    He submitted that because the complainant was told about certain dates, and it was suggested that the events could not have occurred at the times in her statement, there was ‘contamination to an unquantifiable or an unknowable extent’ (T12).

12. [12]
    He submitted that because there are no notes of what Mr Andrew had said, at the conference, and what her response was, it is not possible to know what the complainant’s reactions may have been if she were to be ‘put on the spot’ in cross-examination. Thus, ‘the real evil’ is that it is impossible to assess the extent to which ‘the defence’s guns were spiked,’ and there is no way the matter can properly be addressed. He conceded that it is true that she may be cross-examined about inconsistencies, but that will not reveal what she would have said if ‘it was sprung upon her’ (T12).

13. [13]
    Counsel for the applicant submitted that unacceptable unfairness to the accused arises because the applicant has lost the ability to properly test the complainant by cross-examination; the jury can now never see how she might have dealt with the matters contained in the letter to the Director had they been put to her ‘cold’. It may have led to evidence which could be shown to be untrue.

14. [14]
    He relied on Director of Prosecutions (Queensland) v Mark Timothy Wentworth, Appeal 4118 of 1996 as authority for the proposition that Mr Gundelach’s undertaking was binding on Mr Andrew.  Counsel for the applicant stressed that the information disclosed in the letter to the Director was disclosed subject to the undertaking given by Mr Gundelach, and he therefore contested the submissions of Mr Butler SC that the material in the letter was voluntarily disclosed.

15. [15]
    He disputed that the ability of Counsel at a future trial to be able to explore inconsistencies in the evidence of the complainant does not overcome the problem that there is a big difference between impromptu answers being given by a witness in the jury box when taken by surprise, as distinct from a witness being informed about what attack is to be met.

16. [16]
    He said that if the complainant were an untruthful witness, cross-examination ‘cold’ may have produced further untrue details that could have been used to expose the falsehood of her story. Because she was ‘tipped off’, that opportunity was completely denied to the defence. As a result, her evidence was irreparably tainted and contaminated, and results in unfairness to the defendant if the trial proceeds.

17. [17]
    Senior Counsel for the respondent, Mr Butler, submitted that the disclosures in the letter to the Director were made voluntarily, in the full realisation that the Director might not elect to exercise the discretion in favour of discontinuance, and there was a free choice made for ‘tactical reasons’ to try to persuade the Director to discontinue. He submitted that, in those circumstances, there is no unfairness to the defendant. He stressed that consequences flowed from providing written submissions to the Director. He referred to Director of Public Prosecution v Wentworth (supra), Walton (supra), and Maxwell v The Queen.

18. [18]
    He submitted that, in any event, the information communicated in the letter to the Director, when taken in the context of the evidence, was not of ‘sufficient materiality’ (T18). He submitted that the information communicated by the prosecutor to the complainant was about the dates of events as disclosed in the letter to the Director. However, he submitted, this is different from the way the complainant’s evidence is revealed in her statement where she referred to when incidents alleged to have occurred happened and attempted to produce dates for a real event. By the disclosure of the information about the dates of real events, she was not thereby invited to deviate from the substance of her evidence which relates to the time between the alleged offences and these real life events. In the circumstances, the opportunity the defence say was lost was one, really, to make something of the fact that in her statement she referred to a particular event as being about a particular date when the event was on a different date. He submitted that it is hard to see how that could substantially affect the credit of the witness, given that the defence continue to have the opportunity to cross-examine the witness about these matters, including the fact that she was provided with actual dates in a conference with the Crown Prosecutor, and whether she changed her account as a result of that conference. He submitted that there was no unfairness because of the nature of the complainant’s evidence concerning the alleged incidents.

19. [19]
    He conceded that it can always be said that cross-examination might be an opportunity to shake the witness up in some way, even where there are minor insignificant details that are being utilised by the cross-examiner. However, this is not sufficient for a permanent stay of proceedings because a permanent stay occurs only in exceptional circumstances after there has been a proper balancing of the public interest, the interest in a fair trial, and the interest in charges being prosecuted (T22). In this context ‘any minor tactical advantage’ would not result in unfairness necessary to be shown for a permanent stay. He referred to the principles concerning a permanent stay from Jago v The District Court of New South Wales & Others [1989] 168 CLR 23 and, in particular, the necessity for a balancing process.

20. [20]
    In Walton v Gardiner [1992-1993] 177 CLR 378, 396, Mason CJ, Deane J and Dawson J said:

‘As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.’

They stressed that the question involves whether there is ‘unacceptable injustice or unfairness’ (page 392).

21. [21]
    Senior Counsel for the respondent submitted, in summary, that having regard to the circumstances in which the defence provided this information to the prosecution, that is, in an attempt to seek a tactical advantage by persuading the Director to discontinue, and having made the choice, (one that was not forced upon them) to incorporate information about the dates, and having regard to the nature of that information, it was not material to the core credibility of the complainant; it was information which did not mean that she was changing the substance of her account as to when the offences she alleged occurred. In those circumstances, there is no unfairness which cannot be dealt with in the context of a future trial and the defence have not lost the opportunity of cross-examining the complainant on the issue of dates.

22. [22]
    In reply, Mr Eberhardt submitted that notwithstanding that the complainant talked about an event occurring four weeks after her grandmother’s funeral, when pressed in cross-examination for the first time about that, being unaware of the bomb that is about to blow up under her, she may also link it to a whole series of other events or indeed, in examination-in-chief, link it to another event, which could then be used to fix the matter at a time that it could not have occurred by reference to objective facts. I consider that there is force in this submission.

23. [23]
    A power to order an application for a permanent stay of proceedings should be used ‘only in most exceptional circumstances:’ Jago (supra) 31.  Mason CJ in Jago cited Barton v The Queen (1980) 147 CLR at 111:

‘To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.’

24. [24]
    Senior Counsel for the respondent referred to the following factors as relevant to the decision on the stay:

1. (a)
   The overriding public interest in the prosecution of this matter.  The indictment alleges six counts of rape and two counts of unlawful and indecent assault.

2. (b)
   Once the letter had been sent to the Director, the Prosecutor was entitled to make use of the submission to conference his witness.  He was entitled to amend the dates on the indictment prior to the commencement of trial, and there was no objection made to the amendment of the indictment by defence Counsel.  There was no objection or stay application at the time the Crown Prosecutor sought to amend the dates on the indictment.

3. (c)
   There was no inducement by Mr Gundelach for the submission to the Director, and in this context Senior Counsel referred to Wentworth (supra).

4. (d)
   If the applicant is able to rely on qualified discussions between Counsel, there would be significant detriment to the public confidence in the criminal justice system and its administration.

25. [25]
    I have considered all the matters raised by Counsel for the applicant and Senior Counsel for the respondent concerning the application for a permanent stay.

26. [26]
    I agree with Senior Counsel for the respondent that because of the nature of her account, the complainant is not changing the substance of her account and the dates which were disclosed are not material to her ‘core credibility’.

27. [27]
    I agree with Counsel for the applicant that the impact of the disclosure is unquantifiable. The complainant cannot now be cross-examined ‘cold,’ so there is a degree of ‘blunting’ or ‘neutering’ of cross-examination. It is possible that impromptu answers may have contained information which could be proved to be untrue. However, on the other hand, I consider that the complainant can still be cross-examined at a future trial about the early disclosure of dates and her change of evidence at the trial in November 2006.

28. [28]
    I consider that it is possible for a trial judge to reduce the unfair consequences to the accused of the disclosure to the complainant, by comment in the summing-up about the complainant’s change of evidence following the pre cross-examination disclosure of the dates, and by instructing the jury of the need for careful scrutiny because of the disclosure and the change of evidence.

29. [29]
    Taking into account all the matters raised by Counsel, and the other factors outlined in these Reasons, I have reached the view that the public interest outweighs the unfairness to the accused in this case.

30. [30]
    I dismiss the Application.