R v Potter[2010] QDC 1

DISTRICT COURT OF QUEENSLAND

Application

1. [1]
   The defendant has applied for a permanent stay of proceedings on the basis that there is no power in the Crown to present an indictment against him or that to allow the prosecution to proceed would amount to an abuse of process. The first application is more correctly described as a motion to quash the indictment.

Background

2. [2]
   The factual background to the proceedings commences with the following events recounted by Alice Potter, the defendant’s wife, in her police statement dated 29 June 2005

“1. I am a 41 year old mother of 3 who currently reside at 45/60-62 Beattie Road Coomera with my husband David Robert Charles POTTER and my daughter Stefanie Christina BRUMMER 4 years old and my son Joshua Emmett Byron POTTER 1 year old.

2. We have lived at this address for a period of approximately 2 years.
3. On the 2^nd August 2000 I gave birth naturally to Stefanie at the Gold Coast Hospital.  She is the daughter of my ex-husband Jefke Rene BRUMMER who I have been separated from since January 2002.

4. On the 27^th of June 2002 I met David through an advertisement in the paper.  A couple of weeks later he moved into my house in Pappas Way Carrara with myself and Stefanie who was 2 years old at the time.
5. On the 27^th of June 2003 I married David.
6. In late 2003 we moved to our current address in Coomera.

11. At about 9.10am today I went out shopping and left Stefanie and Joshua in David’s care.
12. I returned home at about 9.30am and when I got home Stefanie met me at the front door of the unit and was very upset and took about 5 minutes to settle down which is very out of character for her.  Once I calmed her down I was trying to find out why she was upset.
13. I said words to the effect of ‘whats matter [sic] why are you upset’
14. She said ‘my wee wee’s sore Daddy hurt my wee wee’
15. David was in the room at this time and he said that she had just done a poo and that he might have been a bit rough.
16. I got Stefanie to pull down her pants and noticed that her vagina lips were red and also the inside was red, so put some cream on her like I usually do.
17. At about 1 o’clock we went up to my room to have a lie down and Stefanie took her pants off.
18. She said ‘look mummy’
19. And pointed down to her pants.
20. She said ‘Poo’
21. When I looked closely I noticed that it was not poo it was spots of blood.  I put another pair of pants on her thinking that she had just scratched herself because her vagina was sore.  She then just layed on the bed.
22. At about 2.30pm I gave Stefanie a bath and she was still complaining that her wee wee was sore.
23. So I asked her ‘What did Daddy do how did he hurt you’ I asked this a couple of times.
24. She said ‘Daddy in my wee wee’ as she said this she put her thumb up.
25. I said ‘what’s this’ as I stuck my thumb up.  She did not give me a reply.
26. After thinking about it for a while I decided to call the Coomera Medical Centre and after telling them of my suspicions they told me to go to the Gold Coast Hospital’s accident emergency department.
27. After arriving to the Hospital I was asked some questions by a lady who is employed there and told to wait.  After waiting a short time I was seen by a man and he spoke to the paediatrician and they informed me that this had to be investigated by Police.
28. The hospital staff then took Stefanie to be examined.  I was present during the examination.  The Doctor informed me that there was a slight tear and an abrasion which I saw.”

3. [3]
   Doctor Susan Moloney was the doctor who examined Stefanie at the Gold Coast Hospital. In her statement dated 6 July 2005 she said

“When looking at her genitalia she had a normal mons, normal labia majora and normal labia minora.  There were some abrasions at 8-9 o’clock that were very recent and tender in her posterior fourchette.  There was no associated bruises with this.  The hymen was thickened and tender to touch.  There was no active bleeding, there was no discharge and there was no evidence of any medical conditions such as thrush…

Stefanie’s injuries were consistent with some force being exerted into her posterior fourchette area.  It is highly unlikely that she did this to herself as the injury was in the posterior area rather than anterior which is where most children injure themselves…”

4. [4]
   Stefanie was interviewed by Senior Constable Blackley on 29 June 2005. The interview was video taped. I have not seen the video yet, but by reference to the transcript the following passages are of particular relevance

“Do you know what a wee wee is, Stephanie? – Where?

Do you know what a wee wee is? – Hurt my wee wee.

Who hurt your wee wee? – [Indistinct] hurt my wee wee [indistinct].

Oh, who did? – Yeah.  And [indistinct] toilet.

And when you went to the toilet? – Yeah.

Did it.  Did it hurt did it?  And who – who hurt your wee wee? – Dad hurt my wee wee.

Daddy did? – Yeah.

Did he?  And how did Daddy hurt your wee wee?—Dad hurt my wee.  With his hand -----?—[Indistinct].

----- [ indistinct] said?—Dad [indistinct] hurt [indistinct] home [indistinct] hurt my wee wee -----

Mmm? -- ----- [indistinct].

Did you see a doctor/ -- [Indistinct] yeah [indistinct].

[Indistinct] see a doctor.  And when did Daddy hurt my wee wee? – Hurt my wee wee go to toilet.”

5. [5]
   The Crown intends to tender evidence of this interview at the trial under s. 93B of the Evidence Act.

6. [6]
   A pre-text phone call took place between Mrs Potter and the defendant at about 9.15pm on 29 June 2005. The conversation was recorded and in part is as follows

“UNIDENTFIED MALE SPEAKER:  Hello.

INTERVIEWEE:  Yeah, it’s me.

UNIDENTIFIED MALE SPEAKER:  Yes.

INTERVIEWEE:  Um, I’ve been up the hospital.  I’ve taken Penny up to the hospital.

UNIDENTIFIED MALE SPEAKER:  Yes.

INTERVIEWEE:  She was complaining of her sore wee wee.

UNIDENTIFIED MALE SPEAKER:  Yes.

INTERVIEWEE:  And there was some – a bit of blood.  She’s been examined.

UNIDENTIFIED MALE SPEAKER:  Yes.

INTERVIEWEE:  Now, can you tell me what’s happened.

UNIDENTIFIED MALE SPEAKER:  What do you mean, ‘what’s happened?’

INTERVIEWEE:  What happened there today?

UNIDENTIFIED MALE SPEAKER:  Nothing happened today.

INTERVIEWEE:  Well, [indistinct]  was telling me that you got a sore wee wee, daddy hurt her wee wees, and I said, um, ‘How did daddy hurt your wee wees?  What did daddy do?’ and she said. ‘Daddy, my wee wees’ and when she said that she put up her thumb.

UNIDENTIFIED MALE SPEAKER:  Her – her thumb?

INTERVIEWEE:  Yeah.

UNIDENTIFIED MALE SPEAKER:  Well, it’s got me stuffed.

INTERVIEWEE:  Well, what happened there today?  Why was she sore?

UNIDENTIFIED MALE SPEAKER:  the only just all I can think of is I wiped too hard the blooming thing-----…

INTERVIEWEE:  Well, I don’t know.  She keeps coming up to me with this.  She was quite upset this morning.

UNIDENTIFIED MALE SPEAKER:  It’s got me stuffed.  I – I do admit I have – I probably have wiped a bit hard, but I don’t know how to – how hard to wipe – to wipe her bits.

INTERVIEWEE:  She’s a little kid.

UNIDENTIFIED MALE SPEAKER:  I know that.

INTERVIEWEE:  But for her to be that upset, you must be pretty rough.  I’m [indistinct].

UNIDENTIFIED MALE SPEAKER:  All right, then.”

7. [7]
   On 5 July 2005 the defendant was charged with raping Stefanie on 29 June 2005.

8. [8]
   On 18 September 2005 Mrs Potter killed Stefanie by suffocating her with a pillow after first tying her arms and legs with masking tape. She was charged with murder and remanded in custody.

9. [9]
   Mr Vasta in his written submissions on the present application says

“13. A decision was made to proceed with the committal of Potter for the rape of Stefanie.  Lawyers for Alice contacted our Southport office and advised that Alice would refuse to answer questions on the grounds of possible self-incrimination.  Further detail was sought but all our office received were vague statements about incrimination for the murder.  The committal proceeded without the evidence of Alice.  Potter was committed for trial for rape.”

10. [10]
    The committal proceedings were scheduled to be held on 11 November 2005. Mrs Potter was originally to be a witness and give evidence in accordance with her statement dated 29 June 2005 which I have set out in paragraph [2].

11. [11]
    On 10 November 2005 Mr Peter Delibaltas of Legal Aid Queensland sent a facsimile letter to the Office of the Director of Public Prosecutions at 2.53pm that day. The letter is as follows

“We act for Alice Marie POTTER who is charged with murder of her five year old child.  The matter is listed for committal mention at Beenleigh Magistrates Court on 1 December 2005.

Our client is a Crown witness in criminal proceedings against her husband, David Potter, who is charged with sexual offences relating to the deceased child.  These charges occurred before the child died and are listed for committal hearing tomorrow, 11 November 2005.  It is our understanding that your office has carriage of the prosecution of David Potter.

After speaking with counsel briefed to defend our client, it is clear that Mrs Potter could be placed in a dangerous position if she gives evidence on oath in a proceeding relating to the child she is alleged to have killed.  We have not received a brief of evidence from police for the charge of murder.  No copy of the statement from our client to police regarding the sexual offences charged against David Potter has been provided at this stage.

We formally provide notice of our intention to appear on our client’s behalf and argue that she should be allowed to claim privilege from answering any questions relating to the charge faced by David Potter.

If our client gives any evidence before another Court, such evidence could be used against her in the case relating to the murder.  The difficulty arises from the fact that we have not been provided with any statements for the murder charge, and as such we have no indication of what statements our client is alleged to have made and whether they would be inconsistent with other evidence which she may give.

In these circumstances, it is extremely important that our client’s interests are protected before the Magistrates Court hearing the committal for the charges against David Potter.  To protect her position we will advise Mrs Potter to claim privilege to any questioning.  This point will no doubt be argued before the Magistrate who hears the matter and to ensure her rights are protected we have briefed counsel for this purpose.  We are unable to secure the services of counsel Jeff Hunter who we intended to brief for the murder charge because he is unavailable at short notice.  John Allen of Counsel is able to appear for Mrs Potter and argue the claim of privilege on her behalf. 

We also kindly ask whether you would be able to provide a copy of our client’s statement to police and her letter to police regarding the allegations…”

The emphasis is mine.

12. [12]
    Ms Sarah Farnden, Acting Crown Prosecutor replied by facsimile letter sent the same day at 3.55pm

“I refer to the above and to your letter received on even date.

Please find attached a copy of the following documents:

2. 1.
   Statement of Alice Marie Potter dated 29/06/05

2. 2.
   Addendum statement of Alice Marie Potter dated 1^st August 2005

2. 3.
   Letter from Alice Potter to Narelle Blackely

2. 4.
   Transcript of pre-text call between Alice and David Potter conducted on the 29^th June 2005.

I confirm my previous advice that the Crown does not intend to call your client to give evidence at the committal hearing tomorrow but will, on the record, reserve its right to call her at trial and produce her for cross-examination at a pre-trial hearing if so required by defence…”

13. [13]
    Ms Farnden appeared for the prosecution at the committal proceedings on 11 November 2005 and at the outset said

“BENCH:  Yes Miss Farnden?

MS FARNDEN:  Thank you, your Honour.  Your Honour, before I commence, there was one other matter that I wished to place on the record in relation to these proceedings.  There is a further witness who provided a statement to police in this matter.  Her name is Alice Marie Potter and she’s the deceased child’s mother – complainant child’s mother.  She has recently been charged with the child’s murder and is currently in custody in relation to that charge.  Her legal representatives have been in touch with me in relation to the proceedings today and as a result of these – all of these factors the Crown has decided that we’re not going to rely on her statement or her evidence for the purposes of the committal proceedings today.

My learned friend had indicated that he required this witness for cross-examination today, but the Crown’s decided that we’re not going to call her or rely on her evidence.  We have been told by her legal representatives that she would claim privilege in relation to any question asked today so the Crown is merely placing on the record at this stage that the Crown is reserving its right to call her at trial in the District Court and that if the Crown chooses to do that then the Crown will make her available for cross-examination prior to trial in a pre-trial hearing at that time when more is known in relation to the relatively recent charges that have come about.

BENCH:  Thank you, Miss Farnden…”

14. [14]
    Mr Vasta conceded that Mrs Potter’s claim for privilege was never tested. It should have been because it was clearly of doubtful validity. Mr Vasta said that Mr Allen did not appear at the committal proceedings and argue the claim for privilege on Mrs Potter’s behalf. The claim in the letter was made in the absence of Mrs Potter’s statement. There doesn’t seem to have been any further communication between the parties after that statement was provided.

15. [15]
    The defendant was on the same day committed for trial on the charge of rape.

16. [16]
    On 21 April 2006 an indictment dated 16 April 2006 was presented to the District Court at Southport charging that the defendant

“on the 29^th June 2005 at Gold Coast in the State of Queensland raped Stefanie Christina Brummer.”

 The indictment was endorsed

“Southport Magistrates Court

MAG – 00116704/05(6)

2000330/CP 2”

17. [17]
    On 9 June 2006 the Court listed the matter for trial commencing on 28 August 2006 and for a pre-trial hearing on 11 August 2006 (s. 590AA) to enable the defence to cross-examine Mrs Potter on her statement. It was intended by the Crown to call her on the trial. Mrs Potter was subpoenaed to give evidence on 11 August 2006.

18. [18]
    The pre-trial hearing never took place because the Crown decided to enter a nolle prosequi on the rape indictment. This occurred on 8 August 2006 and on that date Judge Dearden made the following order

“In respect of indictment 255 of 2006, one count of rape against David Robert Charles Potter, the Crown having indicated it will proceed no further in respect of this indictment, the defendant is discharged in respect of the indictment.”

19. [19]
    The background to the decision to enter a nolle prosequi appears from a DPP file note dated 27 February 2007 which is in the following terms

“From:  Peter Feeney

Sent:  Tuesday, 27 February 2007 12:17 PM

To:  Suzanne Wright, attaché to Director

Subject:  Potter

Greeting and first para of your draft.  (This is a draft.  Please tidy up the dates etc)

I confirm a nolle prosequi was entered on 8^th August 2006 in relation to an indictment against David Potter.  That indictment charged a count of rape upon Stefanie Brummer.  Stefanie was the daughter of Alice Potter and step-daughter of David Potter.  Stefanie was born on the 2^nd of August 2000.  The rape was alleged to occurred on 29^th June 2005.

Alice Potter has been charged with the murder of her daughter Stefanie.  The killing occurred on 18^th September 2005.

The circumstances of the discontinuance of the prosecution are closely related to two other proceedings namely the prosecution of Alice Potter for the murder of Stefanie and child protection proceeding [sic] in the Magistrates Court at Southport.  In the latter case a subpoena has issued for documents held by this Office.  David Potter is involved in those proceedings which concern Joshua, the son of Alice and David Potter. It is understood other family members are also involved in those proceedings.

Further, as you will see from the short report of the Prosecutor who had carriage of the rape matter, although a nolle prosequi has been entered, that matter is is still under consideration by this Office at least to the extent that there will be a review when appropriate.

I am reluctant to provide information concerning current matters and generally will not do so.  However the report of the Crown prosecutor set out below is provided to inform you of the background of the letter dated 25 August…  You will see from the report that the decision was made after the Deputy-Director was briefed by a Principal Crown Prosecutor.  A Senior Crown Prosecutor (and Legal Practice Manager) was closely involved throughout and the committal was conducted by a Crown Prosecutor.

Report by Principal Crown Prosecutor

‘David Potter was committed for trial on a charge of rape of his very young step daughter.  The original brief discloed the following:  A spontaneous comp;aint to the mother; Medical examinations recording injuries consistent with some force being exerted into the posterior fouchette area;  A s. 93A recording of the child’s account Pretext telephone conversation recording with an explanation offered of wiping the child’s bottom, an explanation not consistent with the injuries; A recorded interview with Potter in which he gave a similar but more detailed version.  The statement of the mother as to the complaint and generally as to the care arrangements of the child.

There were difficulties from the outset.  The child had a difficulty with speech and hearing which was obvious from the s 93A tape.  Investigation at her school revealed differing views amongst teachers and specialist teachers.  There was unresolved suggestion of intellectual impairment.  In addition the mother had some history of instability.

After the death of the child a decision to proceed was made.  At committal the lawyers for the mother advised she would refuse to answer questions on grounds of self incrimination.  This seemed rather vague when detail was sought and seemed related to the murder charge brought after the mother killed her daughter.  It was possible to proceed before the Magistrate by recourse to section 93C of the Evidence Act in relation to what had been a s. 93A tape.

The indictment was not presented until the six month deadline approached.  It was hoped the mooted claim of privilege would be resolved.  A decision was made to present rather than seek an extension.  The reasoning was to achieve some certainty regarding the availability if the mother.  A s 590AA application in that regard was listed for 11^th August 2006 and a trial date of 28^th August 2006 set.  I was to appear on both hearings.

The Legal Aid Office for the mother advised the claim would be maintained and a reference to the Mental Health Court was being considered on the basis of a report that had been obtained.

On 2^nd August 2006 I discussed this matter with the Deputy Director.  There were going to be difficulties in arguing the S93C issue but there was a real difficulty in excluding the mother as a possible cause of the injuries.  It was decided there were no reasonable prospects of success in the absence of the mother Alice Potter as a witness in any case…

The nolle was entered on 8^th August 2006.

I intend to review this matter when the murder proceedings are concluded.

Peter Feeney”

As you can see from this the discontinuance was proper in the circumstances.  Those circumstances will continue to exist at least until the murder charges are resolved.  I trust this information clarifies matters for you.

Peter Feeney

Principal Crown Prosecutor

Office of the Director of Public Prosecutions.”

The emphasis is mine.

20. [20]
    Mr Vasta is unable to say whether the reason for the entry of the nolle prosequi was conveyed to the defence but did say that the Crown Prosecutor who nollied the indictment said he did not believe he would have told the defence about any future intention to proceed again with the charge. He said that Mr Feeney doesn’t believe he would have told the defence what his future intention was or the reasons for not proceeding with the charge.

New indictment

21. [21]
    There the matter rested for nearly three years until on 27 April 2009 an ex officio indictment was presented in the District Court at Southport charging that the defendant

“on the 29^th June 2005 at Gold Coast in the State of Queensland raped Stefanie Christina Brummer.”

 that is, the same offence he was previously charged with.

22. [22]
    The indictment was endorsed, as before, as follows

“Southport Magistrates Court

MAG – 00116704/05(6)

2000330/CP 2”

23. [23]
    It is necessary to see what happened in the meantime to Mrs Potter and the murder charge against her. This was referred to the Mental Health Court which, on 10 October 2007, ruled that she was of diminished responsibility when she killed Stefanie and, pursuant to s. 304A of the Criminal Code, ordered proceedings continue for the offence of manslaughter.  On 13 December 2007 she was convicted of manslaughter and sentenced to imprisonment for eight years.  An appeal against that sentence by the Attorney General was dismissed in April 2008.

24. [24]
    It then took a year to recommence proceedings against the defendant.

25. [25]
    In his written submissions Mr Vasta says

“21  The Crown contends that there is no unfairness in the presentation of the indictment.  There has been a review of the evidence.  Alice Potter has had her matters finalised and so the claim of privilege does not arise.  Alice Potter will now give evidence.  She has been spoken to by police and does not resile from her original statement.”

26. [26]
    The Crown now wants Mrs Potter to give evidence in accordance with the original statement which, in my view, she was compellable to do all along. The defence has made the present application.

27. [27]
    Mr Vasta conceded that even though the Crown may have misapprehended the validity of any claim for privilege by Mrs Potter the matter was never going to just go away, on the contrary it was in abeyance awaiting the resolution of the murder charge of Mrs Potter.

28. [28]
    Mr Vasta submitted that the question was not whether there was power to present a fresh indictment against the defendant (which he submitted there was and the defence submitted there wasn’t) but whether doing so amounted to an abuse of process.

The claim for privilege

29. [29]
    Clearly the claim of privilege against self-incrimination by Mrs Potter was not tested and it should have been. Had it been tested it would, in my view, have been found wanting.

30. [30]
    Section 10(1) of the Evidence Act provides

“ 10  (1)  Nothing in this Act shall render any person compellable to answer any question tending to criminate the person.

31. [31]
    Mrs Potter was not called to give evidence either at the committal proceedings or at the pre-trial hearing listed for 11 August 2006 for that express purpose and therefore no questions were ever asked of her and no claim for privilege was made and tested in court.

32. [32]
    Mr Vasta agreed that the following passage from Cross on Evidence (Australian Edition) correctly states the law

“[25101]  The practice to be followed when someone objects to answering a question because of possible self-incrimination is as follows.  The witness’s mere statement that an answer might have this effect is not sufficient, although it is on oath and even if there is no doubt concerning bona fides.  The court must see from the circumstances of the case, and from the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from the answer.  The judge must come to the conclusion that such danger is real and appreciable with reference to the ordinary operation of law in the ordinary course of things, not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency so improbable that no reasonable person would suffer it to influence conduct…”

33. [33]
    Mr Vasta agreed that this is the method by which Mrs Potter’s claim for privilege should have been tested. He conceded that the objection should have been “ventilated” on 11 August 2006. He did not concede that the claim would have failed, only that it should have been argued. He also conceded, correctly, that there was no possibility that questions concerning the conduct of Mrs Potter as outlined in her statement, which conduct was innocent, would have incriminated her in any offence. There was “no danger” to her from the “nature of the evidence” she would have been required to give.

34. [34]
    The claim made by Legal Aid Queensland in the letter dated 10 November 2005 is in the nature of what is called a blanket objection even though not made by the witness when called. In Re Bull (1998) 2Qd R 224 at 225-227 Moynihan J. said

“The respondent was summonsed to appear at an inquiry.  The summons directed to the respondent pursuant to s. 74(1)(a)(ii) required him to give evidence about:

‘An allegation that (he had) received corrupt payments from a person who operated a prostitution service in return for providing protection to that person and her service and that he was responsible for organising a sex show at a function attended by police officers.’

When he appeared at the inquiry the respondent, acting on legal advice, objected:

‘To furnishing any statements or making any disclosures in these proceedings on the ground that furnishing any statement or making any disclosures would tend to incriminate me.’

This has been referred to as a blanket objection. It can’t be doubted that information from the respondent tending to establish the allegations of the kind indicated in the summons would be self-incriminating in the relevant sense.

The respondent having taken the objection before the inquiry in the terms referred to above, the officer conducting it expressed the view that a claim of privilege was not properly made.  The inquiry then proceeded with the respondent answering the questions directed to him.  He renewed his objection at an adjourned hearing of the inquiry and the same course of events then followed…

The case before the tribunal and before me was argued essentially on the basis that a ‘blanket objection’ was insufficient to attract the protection afforded by s. 96(1).

The position with a blanket objection is in my view correctly stated by Northrop J. in C v National Crime Authority (1987) 78 ALR 338 at 342 in these terms:

‘A mere statement by the witness that his answers might tend to incriminate him is not sufficient.  The court must be able to see for itself that there is reasonable ground to fear that the answer may have the stated effect.  What it will be necessary for the witness to establish in order to be allowed to claim the privilege will depend upon all the circumstances of the case.  So where, ‘a question concerns conduct that is itself innocent, and will only involve risk to a witness as a link in a chain of proof, he must satisfy the court by facts that will, in that event, be outside the terms of the question, that the answer would, or might tend to, incriminate him…’’

In Gamble v Jackson [1983] 2 VR 334 at 336 Starke J. in a judgment agreed with by Crockett and Marks JJ. said:

‘Questions of an incriminating nature may be of two kinds.  The first is where the question itself reveals that the material sought is of a criminal and therefore incriminating nature.  In such a case no doubt the officer would usually not have to produce any material to establish that he had a lawful excuse.  The second is where the question is innocent on its face but seeks after material which may form a link in a chain of incriminating material.  In such a case the applicant in my opinion must be able to point to material which indicates the incriminating character of the material.  Such material of course need not be itself of an incriminating nature.  It will usually be sufficient to show what it is the Crown alleges.’

Put shortly, it is misleading to speak of a ‘blanket objection’ as being adequate or not.  It is simply a question of whether the material, the subject of the objection, is sufficient in isolation to establish the grounds of the claim or whether more is required.  In the former case a ‘blanket objection’ may well suffice.  A court or tribunal may well be able to ‘see for itself’ if, for example, the nature of the witness’s connection with particular events being canvassed is obvious and incriminatory.  Each case turns on its own facts.”

35. [35]
    It was conceded in Bull that answers by the witness to questions of the nature proposed would be self-incriminating.  That is not the case here and the Crown clearly misunderstood the nature of the privilege and the process by which it is to be claimed.

 What now follows from these events?

36. [36]
    I agree with Mr Vasta that the Crown is not (as was submitted by the defence) prevented from presenting the new indictment against the defendant for any of the reasons stated in decisions such as Re Jenkin [1994] 1 Qd R 266, R v Foley (2003) 2 Qd R 88, R v Boulle [2006] QSC 253 and R v Ford [2006] QCA 440.

37. [37]
    The facts in those cases are different from the present and it would, with respect, be a mistake to interpret the statement in Foley that s. 561 of the Code

“… does not permit the presentation of an ex officio indictment for an offence in respect of which a defendant has been committed for trial”

literally and as having general application to all cases.  It should not be taken out of context.

38. [38]
    In the present case there has been no contravention of s. 590 and the presentation of the ex officio indictment does not amount to a ‘circumvention” of s. 590. With respect to Fryberg J. in R v Boulle, I think that His Honour applied the statement in Foley too literally.  Also I am not, with respect, persuaded (as Judge Robertson seemed to be in Vandermeer v R [2003] QDC 026) that resolution of the issue depends whether the legal effects of committal have ended.  R v Foley is authority only for what is said in para [27] of the judgment, namely

“[27]  Consequently we do not think that s 561, on its proper construction, would permit the presentation of an ex officio indictment where, as in this case, the only purpose thereof would be to charge a person with an indictable offence for which he had been committed for trial and on which it was intended to put him on trial, but in respect of which an application under s 590(2) had failed.”

39. [39]
    I agree with Mr Vasta that, subject to the Court’s power to prevent abuse of its process, the power of the Crown to present an ex officio indictment in this case is ‘unexaminable’ (see R v Barton (1980) 147 CLR 75 and R v Cooney (1988) 1 Qd R 464).  Mr Vasta submitted that if the Crown could not present an ex officio indictment it would simply start again and re-charge the defendant and have him re-committed for trial. 

40. [40]
    This leaves the alternative objection that to allow proceedings (on the ex officio indictment) to proceed would, in the circumstances, amount to an abuse of process.

41. [41]
    Mr Vasta in his written submissions (paras 22 and 23) acknowledged

“22. The Crown acknowledges that there could arguably be some prejudice for Potter in having this matter brought back before the Court but in all the circumstances such prejudice is far outweighed by the public interest in seeing this matter properly prosecuted.

23. It is in the public interest that all persons who interfere with children of tender years are brought to justice.  In this matter:-

• The Crown has a strong case
• The evidence is preserved
• Potter can have a fair trial”

42. [42]
    He submitted that the only unfairness here is in not telling the defence why a nolle prosequi was being entered and advising them that the charge of rape may later be pursued again. The unfairness may be exacerbated, he conceded, by a finding, which I make, that the Crown could have called Mrs Potter and made an error of judgment in not doing so. Had she been called she would not, in my view, have been successful in any claim not to answer questions about what she said in her statement and whether she interfered with Stefanie. (She gave evidence before me (on this application and in relation to other pre-trial issues yet to be fully argued) and, unsurprisingly, denied interfering with her daughter. Such a question asked of her prior to the disposition of the charge against her would not have attracted the privilege).

43. [43]
    Mr Vasta also submitted there is no prejudice to the defence by the delay of three years or so because the evidence of the complainant is preserved on video and she was never going to be able to be cross-examined because Mrs Potter killed her. The inability of the defence to cross-examine her goes to the weight to be attached to her evidence.

44. [44]
    In the end he submitted that any unfairness was related only to the decision to enter a nolle prosequi following from the decision to concede her untested blanket claim for privilege.

45. [45]
    Relevant principles are referred to in many decisions including Connelly v DPP [1964] AC 1254, R v Saunders [1983] 2 Qd R 270, Barton v R (1980) 147 CLR 75, Jago v NSW District Court (1989) 168 CLR 23, Walton v Gardiner (1993) 177 CLR 378, R v Cooney [1988] 1 Qd R 404, Williamson v Trainor [1992] 2 Qd R 572 at 579, 582, 583, R v Croydon Justices; ex parte Dean [1993] QB 769, Visser v Hodgetts [2002] Tas SC 44 and Barac v DPP [2006] QSC 421.

46. [46]
    The Court’s power to stay proceedings which are an abuse of process should only be exercised in exceptional or rare circumstances. A permanent stay should be ordered only in an extreme case where the ability of the defendant to obtain a fair trial is irreparably prejudiced. The process of the criminal law is not to be abused and defendants are not to be treated unfairly or subjected to oppression, injustice or vexation or prosecuted in a manner inconsistent with the recognised purposes of the administration of criminal justice or in a way in which the administration of justice is brought into disrepute.

47. [47]
    Three matters are mainly relied on in the present case for the submission that it will be impossible for the applicant to receive a fair trial

3. (1)
   the entry of the nolle prosequi without any indication or suggestion that the charge may in the future be brought again;

3. (2)
   the presentation of a new indictment in those circumstances; and

3. (3)
   the delay of about three years.

48. [48]
    I am not satisfied that these, either separately or together, are sufficient to warrant taking the extreme step of permanently staying the proceedings. The defendant is clearly not responsible for this state of affairs and could, in the interim, have done nothing to assert his rights because simply there were none to assert once the charge was withdrawn. On the other hand I am not satisfied that he will suffer any prejudice from a late trial of the charge beyond having to face the charge again. I am satisfied that, notwithstanding the delay, his trial can be fair. The public also have an interest in the disposition of charges of serious offences and in the conviction of those guilty of crimes. The delay here is due to the prosecution’s inadvertence or negligence, not bad faith or improper motives. The defendant will not, as a result, be denied a proper opportunity of defending himself.

49. [49]
    The circumstances in Williamson v Trainor [supra], are analogous to those in R v Foley [supra].  The second complaint was clearly an attempt to circumvent the refusal by the Magistrate to grant the prosecution an adjournment and the consequences following from that refusal.  The agreement between the prosecution and defence following the Magistrate’s refusal to grant the adjournment were clearly intended to finalise for all time the prosecution.  It was the prosecution’s attempt to “resile” from that agreement which, if allowed, would have brought “the judicial process into disrepute”.  The present facts are distinguishable from those in Williamson v Trainor.

50. [50]
    For these reasons the defendant’s application will be refused. His application in relation to the complainant’s capability and capacity to give evidence (including reliable evidence) and various other aspects of the evidence remain to be determined.