DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application to permanently stay particular criminal proceedings against the defendant, based upon the delay in bringing the matter to trial and the consequential forensic disadvantages suffered.

2. [2]
   The applicant defendant is charged with raping the complainant on a date unknown between 1 September 1962 and 2 December 1964 at Hattonvale.  At that time, the complainant was aged between 5 and 7 years and the defendant was between 14 and 16.

3. [3]
   The Court has power to permanently stay criminal proceedings if the extensive delay in bringing on a trial would result in its being unfair: Jago v District Court (NSW) (1989) 168 CLR 23, 34, 49, 56, 59-61, 71-2, 75-6, 78.

4. [4]
   In the present case, the delay is some 43 to 46 years.

5. [5]
   Mr Hardcastle’s principal arguments in favour of a stay were that:

• the complainant’s recollections were just childhood flashbacks;
• the complainant’s and defendant’s ages and locations at the time are in doubt;
• medical records which may assist in clarifying the date of the alleged incident no longer exist;
• the long delay has unfairly prejudiced the defendant’s capacity to get a fair trial; and
• this could not be remedied by a Longman direction.

6. [6]
   Mr Swanwick opposed the application and submitted that:

• the complainant said that the alleged incident occurred when she was in grade 1 or 2 at Hattonvale School―which was in 1963 or 1964;
• those dates were sufficient to date-particularise the indictment, regardless of any missing medical records; and
• any unfairness to the defendant could be remedied by a Longman direction.

7. [7]
   The direction required by Longman v The Queen (1989) 168 CLR 79 applies when fairness in a criminal trial for a sexual offence is thought to be impaired by a long delay in bringing the matter to trial.  Brennan, Dawson and Toohey JJ said (at 91) that:

“The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.”

8. [8]
   In R v Noyes [2003] QCA 564, the Court of Appeal (McMurdo P, Muir and Holmes JJ) upheld the refusal of a stay in a trial for various sexual offences against children.  The delay was between 33 and 36 years.  The indictment specified a 12-month period within which the offences were alleged to have occurred.  That was further particularised as: the first couple of months of that period (counts 1-3); closer to the end of it (counts 4-5); and within a 6-month period (counts 6-7).  The defendant (a serving police officer) was able to establish in general terms his whereabouts and activities during those periods.  The Court doubted that certain identified persons could have materially assisted as to the occurrence of the offences or otherwise or that anything was lost by the unavailability of certain documentary records or witnesses.  The Court accepted that although the defendant had lost the capacity to establish precisely the movements of another relevant child witness and had been disadvantaged by the very long passage of time, the trial judge had given an appropriate Longman direction and in all the circumstances, a stay was not warranted. 

9. [9]
   However in R v Smith [1998] QCA 460, the Court of Appeal (de Jersey CJ, McPherson JA and Chesterman J) upheld the grant of a stay in a trial for various sexual offences against children.  The delay was between 35 and 40 years, which the court called one of “obviously extraordinary proportions”. The indictment specified a 4-year period within which the offences against one complainant were alleged to have occurred and a 7-year period in respect of another complainant.  The trial judge regarded as relevant the length of the delay, the absence of other witnesses to the alleged events,  the lack of specificity in the dates of the alleged offences which excluded any real possibility of securing evidence of any available alibi, the death and unavailability of other persons who may have thrown some light onto aspects of the matter, the absence of any documentary records relating to the complainant’s and defendant’s activities at the time, the absence of fresh complaint and the circumstance that the defendant (a then elderly former orphanage employee) would have real difficulty recalling the period in time covered by the allegations.  The Court said that those considerations “gave ample support for the conclusion to which [the trial judge] came.”  The Court also said that:

“[Counsel for the Attorney-General, the appellant] 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 extent 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.”

10. [10]
    In the present case, the delay is even longer than the “extraordinary” delay in Smith.  As in Smith (but unlike Noyes), there is no particularised specificity in the date of the alleged offence, thus adversely affecting the possibility of the defendant’s securing evidence of any possible alibi or of witnesses or other persons (if still alive) who might have been able to throw some light onto aspects of the matter.  As in Smith (but unlike Noyes), missing documentary records (the medical records) could have assisted in establishing the complainant’s age and whereabouts etc at the time.  And as in Smith (but again unlike Noyes), it is likely that the defendant would have real difficulty, given his then youth, recalling the period in time covered by the allegations.

11. [11]
    In my view, these points strongly militate in favour of the conclusion that in the present case, the extraordinary delay and consequential forensic disadvantages mean that the defendant will not be able to get a fair trial.

12. [12]
    It should also be noted that in Longman, Deane J drew attention (at 101) to the possibility, in the prosecution of very old sexual indictments, of “child fantasy about sexual matters” being hardened by the long passage of time “into the absolute conviction of reality”―something that could have been avoided by the “[c]ontemporaneous questioning of the child”.  McHugh J commented to similar effect, saying (at 107-8) that:

“Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine.”

13. [13]
    In Smith, the Court of Appeal upheld the grant of a permanent stay, without any discussion of whether a Longman direction could have remedied the unfairness to the defendant.  It may therefore be assumed that no such direction could have had that effect. 

14. [14]
    Having regard to all of the circumstances of this case, I have concluded that a permanent stay of the criminal proceedings should be granted. There will therefore be an order in the following terms:

That Indictment No. 241/08, which alleges that on a date unknown between the first day of September, 1962 and the second day of December, 1964 at Hattonvale in the State of Queensland, S raped W, be permanently stayed.