R v Viner[2009] QDC 326

DISTRICT COURT OF QUEENSLAND

Application

1. [1]
   The defendant is charged with unlawfully assaulting Macey Gloria Taiti and doing her bodily harm and with unlawfully confining her at the Railway Hotel against her will. The offences are alleged to have been committed in Cairns on or about New Year’s Eve 2006.

2. [2]
   The defendant has applied for an order staying the indictment on the basis that he is unable to have a fair trial until crucial police and civilian witnesses can be identified or found.

Evidence

3. [3]
   In her statement to police dated 3 January 2007, Ms Taiti (who is an Aboriginal Australian) says that she met the defendant for the first time on 3 December 2007 (it appears common ground that this should read “2006”). On 31 December 2006, Ms Taiti was at the hotel drinking when, just before closing time at about 6.00 pm, the defendant came up to her and invited her to go upstairs as he was having a barbeque. Ms Taiti went upstairs and saw a few people that she recognised.

4. [4]
   Ms Taiti and the defendant went firstly to the defendant’s unit where they drank together and at some stage the defendant obtained food from the barbeque for the two of them.

5. [5]
   According to Ms Taiti, “after the fireworks finished” only she, the defendant, “Ron” and “another tall guy” whose name Ms Taiti cannot recall, were left. Ms Taiti was talking with “Ron” and the defendant was walking in and out of the unit to make drinks.

6. [6]
   Ms Taiti’s evidence in her statement is that the defendant said to her, “Were you talking about me, running me down behind my back?” and she replied, “No, we were just talking”. Ms Taiti says that the defendant then starting arguing with her on the veranda then walked away and slammed shut the door of his unit. She went to the door and knocked and said, “My bags are in there, can I get my bags?” The defendant let her into the unit and she sat down and asked him why he was getting upset with her. The defendant said, “You were running me down behind my back”, she replied, “Why would I say such things?” he said, “You’re just like the others”, she said, “What others?”, he said, “Just like the others”, she said, “Who?”, he said, “The other black sluts”.

7. [7]
   Ms Taiti’s evidence in her statement is that the defendant got up, threw her off the chair and started hitting her. He grabbed her upper arms with both his hands and picked her up from the chair and threw her to the floor. When she tried to get up off the floor the defendant sat on her thighs and punched her in the head with his right fist. She pushed him away from her and tried to run for the door but he grabbed her from behind, wrapping his arms around her upper body and preventing her from opening the door. The defendant then picked her up and threw her to the floor and she knocked her head as she fell.

8. [8]
   Ms Taiti says that she got up slowly and felt the defendant hitting her from behind on her back, the back of her neck and the back of her head. The defendant was pulling at her legs as she was crawling towards the bathroom. The defendant punched her in her mouth which caused her lip to bleed.

9. [9]
   Ms Taiti apparently got into the bathroom and when she came out the defendant knocked her down and pulled her hair. As she tried to make it to the door the defendant pushed her again and tried to knock her against the wall. At this point Ms Taiti was getting dizzy, so she slipped to the floor. While she was on the floor the defendant grabbed her by the throat and tried to strangle her. He was sitting on her chest and squeezing her neck with both hands and whilst doing so, lifted her head off the ground and forced it back down again causing it to bounce on the floor. Ms Taiti was telling the defendant to stop hitting her and calling out for help.

10. [10]
    Ms Taiti says that eventually someone, who she knows only as “Goatee”, came into the room and she said to him, “Please make him stop”. The defendant said to Goatee, “If you don’t leave I’ll hit you too”. The defendant dragged Ms Taiti into the middle of the room and pulled her jeans off. He then ripped her knickers off and took her top off, then started hitting her again, head butting her and trying to strangle her.

11. [11]
    Ms Taiti got up, ran around the table away from the defendant but the defendant pushed the table against the wall and pinned her there. Eventually, Ms Taiti made it outside hoping for help from others, but she says, “the people there did nothing, they just sat there”. The defendant grabbed her by the hair and pulled her back into his room as “all the while these people were just watching”.

12. [12]
    The defendant shut the door behind them and head butted Ms Taiti. Ms Taiti pushed the defendant away from her but was pulled down again and punched. She can recall the defendant punching her on the nose and her nose bleeding.

13. [13]
    Ms Taiti told the defendant to stop as she was bleeding and “at this stage police knocked on the door”. The defendant moved away from her. Ms Taiti was still undressed and bleeding from her mouth and nose.

14. [14]
    Ms Taiti says that one of the police officers took the defendant to the toilet area and asked him questions whilst the other took her name and she told him what had happened. She asked the police officer if she could get dressed and collect her bag and the officer followed her as she got her bag. The officers then took her firstly to her daughter’s place but as she was not home, one of the officers suggested that she go to “a sobering shelter”, she believes in Lyons Street. Ms Taiti was apparently taken there by the police officers.

15. [15]
    At 2.00 pm on 3 January 2007 Ms Taiti went to the Cairns Police Station and made a complaint and gave a statement to Constable Sean O'Shea. Constable O'Shea also arranged for photographs to be taken.

16. [16]
    On 10 June 2007 Constable O'Shea took a statement from Michael John Charlwood whom he identified as being a person Ms Taiti claimed had witnessed the incident, probably the person she referred to as “Goatee”.

17. [17]
    In his statement Mr Charlwood recalls that he was celebrating New Year’s Eve on the veranda near the manager’s flat upstairs at the Railway Hotel with other residents of the hotel. He had lived at the hotel for about 18 months at the time of making his statement. He said he was the “upstairs” manager and the defendant was the “downstairs” manager at the hotel.

18. [18]
    At some stage in the night Mr Charlwood heard loud screaming and recognised Ms Taiti’s voice. He heard her saying, “Help me, help me, David stop.” The screaming was coming from the defendant’s flat. Mr Charlwood went to the door and pounded on it loudly and said, “What the fuck are you doing?” He heard the defendant reply “Don’t worry about it Goatee”.

19. [19]
    The door opened and the defendant shoved Ms Taiti out the door onto the verandah. Ms Taiti was totally naked and lying on the floor. The defendant grabbed Ms Taiti by her hair and dragged her by the hair a few metres up the veranda. The defendant said to others on the veranda, “White boys, this is what a black slut is.”

20. [20]
    Ms Taiti then stood up and went back into the flat, the defendant followed her, then one of the men on the veranda rang the police. Mr Charlwood also rang the police as the defendant had barricaded the door closed with Ms Taiti in the room. Mr Charlwood could hear yelling and screaming coming from inside the flat but could not make out what was being said.

21. [21]
    Mr Charlwood says that he saw a police car pull over onto the opposite side of the road and he called them over. He let the officers into the premises and showed them upstairs and saw the officers knock on the defendant’s door. The defendant opened the door and let them in. He saw that Ms Taiti was half dressed at this time. About 20 minutes later he saw the main door open and he looked through the wire door. He saw the defendant shake the officer’s hand and say, “Thankyou.” The officers walked out of the flat and one of them approached Mr Charlwood and said, “Since you are the manager, you need to bar this woman from the premises.” Ms Taiti left with the police officers.

22. [22]
    On 1 January 2007 at 11.38 pm Ms Taiti attended the 24 Hour Medical Centre and medical notes indicate that she told the doctor she was “assaulted by her husband – last night – c/o pain all over the body”. On examination she was found to have multiple bruise marks on both sides of the hip, back and lower back and had a small tender swelling on the occipital area. Her whole body was painful. Ms Taiti was given pain relief.

23. [23]
    Ms Taiti and Constable O'Shea were the only witnesses to give evidence at the committal proceedings on 2 April 2008. Constable O'Shea, in cross-examination, stated that following the complaint from Ms Taiti he spoke to the officer in charge of the Communications Control Centre and ascertained that there was no record of police attending at the Railway Hotel as alleged by Ms Taiti and Mr Charlwood. Constable O'Shea’s evidence was that he could not identify any of the other persons who, according to Ms Taiti, witnessed the incident.

24. [24]
    Ms Taiti confirmed during the committal hearing that the police officer who spoke to her at the scene took notes of what she was telling him and that she told him what had happened from when she went up to the room until the police arrived. In cross-examination Ms Taiti was asked if she could recall taking hold of a pool cue and whether she noticed any injuries or wounds to the defendant.

25. [25]
    On 2 May 2008 (after the committal hearing) police obtained a statement from Thomas Verfurth who, on New Year’s Eve 2006, was working as a security officer at Cairns Central Shopping Centre. He was with two other security officers conducting patrols on McLeod Street when he noticed a disturbance on the balcony of the Railway Hotel which “seemed like a domestic argument between a male and a female”.

26. [26]
    Mr Verfurth and his companions went to the balcony of Tosco’s at Cairns Central Shopping Centre from where he observed a male physically abusing a female. He saw the male pushing, shoving and punching the female and at one stage saw him dragging her. He saw the female trying to get away before being grabbed and further physically abused. He saw the female run towards the stairwell at the northern side of the building being pursued by the male. Throughout the incident he could hear the female scream and can recall “them yelling at each other, a lot of abuse going back and forth between them”.

27. [27]
    Mr Verfurth called the police. He flagged down a police vehicle as it passed and shortly afterwards another police vehicle arrived.

28. [28]
    In his statement, Constable Stephen Brookes says that at some time around 8.00 pm on 31 December 2006 he and Constable O'Mara who were patrolling on foot, were detailed by Police communications to attend the Railway Hotel in relation to a disturbance. They were unable to locate any disturbance or gain access to the hotel.

29. [29]
    The statement of Michael Charlwood was not tendered at the committal hearing and the prosecution apparently are unable to locate him to give evidence at the defendant’s trial.

30. [30]
    I have not been provided with the photographs taken of Ms Taiti taken at the instigation of Constable O'Shea, but it appears that the photographs do not illustrate injuries consistent with the prolonged and severe attack by the defendant described by Ms Taiti.

31. [31]
    This application was adjourned a number of times in order to allow the prosecution the opportunity to locate the police officers who attended at the Railway Hotel as alleged by Ms Taiti, Mr Charlwood and Mr Verfurth. All such investigations have proved fruitless. In fact, a statement from the Cairns District Tactician includes the following:

“The Queensland Police Service does not possess any record of any police officer attending the Railway Hotel on the evening of the 2006 New Year’s Eve celebrations in Cairns in relation to the matter before the court.”

Enquiries with diversionary centres, including the one at Lyons Street, have failed to produce any relevant records which could support Ms Taiti’s allegations or identify the police officers who escorted her.

Arguments

32. [32]
    It is argued on behalf of the defendant that the police officers who attended the incident could give evidence as to –

• The sobriety of the complainant.
• Whether she was naked as alleged.
• Whether she was bleeding as alleged.
• Whether she was injured as alleged.
• The account given by the complainant.
• Whether the applicant was injured.
• Whether a pool cue was located, taken possession of and submitted for forensic analysis.
• The sobriety of the applicant.
• Whether other witnesses were spoken to.
• The time the police attended.
• The account given by the applicant.
• Whether the police did advise Charlwood to “bar this woman from the premises”.
• The lighting on the veranda.
• Whether the door to the applicant’s room was barricaded or locked when police sought to enter it.
• The state of the applicant’s room.

It could be added that the relevant police officer could also presumably produce the notebook in which the conversation with Ms Taiti was recorded.

33. [33]
    It is argued that in the absence of the subject witnesses the defendant cannot receive a fair trial. The failure to locate and call the police witnesses, it is said, creates a fundamental defect which goes to the root of a fair trial in that it denies the applicant the opportunity of eliciting within the Crown case – (a) evidence which impacts upon the credibility of the complainant and (b) evidence supportive of the defence of the applicant.

34. [34]
    The prosecution admits that the case as a whole turns substantially on the credibility of Ms Taiti and that the existence of prosecution witnesses who may directly contradict her evidence would be highly significant. However, the submission is made that fairness also involves the interest of the community in having a person accused of committing a serious offence brought to trial. Further that it would be unfair to stay proceedings where “an Aboriginal woman is said to be assaulted and deprived of her liberty in a hotel by a Caucasian bar manager because unidentified police officers could not be called as witnesses.”

35. [35]
    In fact it is not only the police officers who cannot be identified, Mr Charlwood is also unable to be located.

The law

36. [36]
    The leading High Court authority regarding the principles upon which a permanent stay of proceedings will be ordered is that of Jago v District Court of New South Wales^[1].  In that case the basis of the application was whether undue delay in bringing a matter to trial amounted to an abuse of process.  Mason CJ at p 33 noted that:-

“The touchstone in every case is fairness”.

And that

“The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial.”

37. [37]
    At p 34 Mason CJ said:-

“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.’”

The reference here was to the decision of Wilson J in Barton^[2].

38. [38]
    At p 47 in Jago Brennan J noted that –

“Obstacles in the way of a fair trial are often encountered in administering criminal justice.”

Brennan J referred to adverse publicity, adverse revelations in a public inquiry, absence of competent representation or the death or unavailability of a witness as examples of such obstacles.  But went on to say:-

“Unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness.  When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party, but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues.  The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.”

39. [39]
    Later Brennan J said:-

“An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve.”

40. [40]
    In Walton v Gardiner^[3] the test to be applied by a court in determining an application for a stay was formulated as: “Whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness”, or whether the “continuation of the proceedings would be “so unfairly and unjustifiably oppressive” as to constitute an abuse of process”.

41. [41]
    In R v W ex parte A-G (Qld)^[4] Mackenzie J reiterating the principles in Jago and Walton v Gardiner in the Queensland Court of Appeal held at paragraph [16]:-

“The power to grant a permanent stay is to be used only in the most exceptional circumstances.  The case must be an extreme one to warrant a stay.  There is a strong public interest in the prosecution of serious offences and the conviction of offenders, subject to the public interest in ensuring that judicial proceedings are not abused, that accused persons’ trials are fair to them, that innocent persons are not convicted, and public confidence in the administration of justice is maintained.”

42. [42]
    The most recent High Court case dealing with a permanent stay of proceedings is R v Edwards^[5]. In that case the trial judge granted a permanent stay on the grounds of delay and the loss of relevant electronic and data records. The High Court set aside the order, although it noted (at paragraph 28) that “The lost evidence goes to this issue [an essential element in the offence charged] as does the testimony of witnesses whose accuracy and reliability may be affected by delay”.

43. [43]
    The court commented:

“Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all the material which could relevantly bear upon the matter does not make the trial unfair”.^[6]

44. [44]
    At paragraph 33 the court went on:

“It is well established that the circumstances in which proceedings may be found to be an abuse of process are not susceptible of exhaustive definition. It is not necessary to consider whether there may be circumstances in which the loss of admissible evidence occasions injustice of a character that would make the continuation of proceedings on indictment an abuse of process of the court. This is not such a case.”

Analysis

45. [45]
    The present case similarly, is not one in which the inability of the prosecution to identify or locate witnesses leads to a conclusion that the continuation of proceedings against the defendant amounts to an abuse of process. Although it is surprising and disappointing that the prosecution is unable to identify police officers who attended and took a complaint of a serious assault, the circumstances of this case are not of such an “extreme” or “exceptional” variety as to warrant the making of a stay. Having said that, it is nevertheless clear that without the subject witnesses, the Crown case loses some considerable strength and strong warnings will have to be given to the jury by the trial judge in these circumstances.

46. [46]
    The application is dismissed.