R v B (No 2)
[2010] QDC 307
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- R v B (No 2)[2010] QDC 307
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R v B (No 2)[2010] QDC 307
Published as a pre-trial ruling at [2010] QDCPR 2
R v B (No 2)[2010] QDC 307
Published as a pre-trial ruling at [2010] QDCPR 2
DISTRICT COURT OF QUEENSLAND
CITATION: | R v B (No 2) [2010] QDC 307 |
PARTIES: | R v B (applicant) |
FILE NO/S: | 2527/08 |
PROCEEDING: | Pre-trial hearing |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 16 July 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16 July 2010 |
JUDGE: | Rafter SC DCJ |
ORDER: | The application is dismissed. |
CATCHWORDS: | CRIMINAL LAW – PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – GENERALLY – where previous ruling dismissing an application for a permanent stay of proceedings – where applicant submitted there were factors constituting special reason justifying the reopening of the ruling – where applicant ascertained one potential witness was deceased – where applicant was unable to locate two other potential witnesses despite attempts to do so – where one of the complainants allegedly lied under cross-examination at the committal hearing when asked whether she had made a previous rape complaint – where the particular complainant had admitted to lying in her police statement – whether leave ought to be granted to reopen the ruling Criminal Code(Qld), s 590AA Baker v The Queen (2004) 223 CLR 513, considered R v B [2009] QDC 59, considered R v Dunning; ex parte Attorney-General [2007] QCA 176, considered R v Edwards (2009) 255 ALR 399, considered R v Smith [1997] QCA 109, considered |
COUNSEL: | A Hoare for the applicant J Robson for the respondent |
SOLICITORS: | Byrne Legal Group for the applicant Office of the Director of Public Prosecutions for the respondent |
- [1]The defendant is charged with one count of assault occasioning bodily harm, two counts of indecent assault on a female, eight counts of rape, two counts of deprivation of liberty and one count of stealing.
- [2]The charges relate to two female complainants. All offences are alleged to have occurred at the Gold Coast on the 13th of December 1981.
- [3]On 3 March 2009 Judge Brabazon QC dismissed an application by the defendant for a permanent stay of the indictment: see R v B [2009] QDC 59.
- [4]By this application the defendant seeks an order pursuant to section 590AA(3) Criminal Code granting leave to reopen the ruling made on 3 March 2009 and an order permanently staying indictment number 2527 of 2008 presented on 23 September 2008.
- [5]Section 590AA(3) provides that a pre-trial ruling is binding unless the Judge for special reason gives leave to reopen the ruling.
- [6]Although the factors constituting "special reason" cannot be defined Williams JA said in R v Dunning; ex parte Attorney-General [2007] QCA 176 that, "Frequently, perhaps more often than not, a material change to any factor relevant to the exercise of discretion will amount to 'special reason' for reopening the ruling..." (at para 33).
- [7]In Baker v The Queen (2004) 223 CLR 513 Gleeson CJ said, "There is nothing unusual about legislation that requires Courts to find 'special reasons' or 'special circumstances' as a condition of the exercise of a power. This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to define precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors." (at 523 para 13)
- [8]The defendant contends that the factors constituting special reason justifying the reopening of the ruling of Judge Brabazon QC are the death or unavailability of eyewitnesses and the discovery of evidence that undermines the prosecution case.
- [9]In his reasons for dismissing the defendant's application on 3 March 2009 Judge Brabazon QC said, "There were four other men in the unit according to (the defendant). There is no evidence here that either the police or (the defendant) have attempted to find those men. (The defendant) recalled at the time of his record of interview the names of two of them as tradesmen working with him on the same project at that time at the Gold Coast. It is true that 27 years have passed, but it is not unimaginable that one or both those men might still be working at the Gold Coast. In any event, here there is no information about any inquiries of that kind.”
- [10]The defendant and his solicitors have made inquiries about the whereabouts of these witnesses. As it turns out there were three potential witnesses, not four as stated by Judge Brabazon QC.
- [11]There are affidavits of the defendant and his solicitor setting out the steps that have been taken to attempt to locate the witnesses. The defendant has ascertained that one of the witnesses died in a motor vehicle accident in Tasmania between 1983 and 1985. However when the defendant's solicitors attempted to obtain a certificate of death they were issued with a certificate of no record stating that the Registry of Births, Deaths and Marriages in Tasmania has no record of the death of the person during the period 1982 to 1986.
- [12]Nevertheless in the circumstances it is appropriate to determine this application on the footing that the nominated witness is in fact dead even though the precise location or the period in which he died is not entirely clear.
- [13]The defendant has not succeeded in locating the other witnesses despite considerable attempts to do so.
- [14]Judge Brabazon QC recognised that the witnesses may not be located. His Honour said, "It is most unlikely, though not impossible, that the other four men would be identified. They are potential witnesses for the accused here in describing what happened in the unit that night. The question is whether or not the disadvantages can be dealt with by appropriate warnings or whether they are beyond being dealt with that way."
- [15]The additional evidence relied upon by the defence in this application that is said to further undermine the prosecution case relates to evidence given by one of the two complainants at the committal hearing on 25 March 2008.
- [16]In cross-examination by Mr Hoare the particular complainant was asked, "Have you ever made a complaint like this before? A complaint of rape, I'm speaking of?" The witness replied, "No." She was then asked, "Since that time?" And again she said, "No."
- [17]It is common ground that at the time of the committal hearing there were charges pending in a New South Wales Court in which the complainant alleged that her father had raped her. The defendant's father was tried in New South Wales in respect of those charges and he was acquitted.
- [18]It is said on behalf of the defendant on this application that a central part of the defence case at that trial was that the complainant concocted the complaint.
- [19]Mr Hoare pointed to evidence given by the complainant's niece that she overheard the complainant saying "that they were going to take (the complainant's father) to Court and that they were going to get money out of it and she thought it was funny that (another person) was going to lose her house."
- [20]Mr Hoare also points to the fact that the complainant has admitted lying in her police statement. She claimed in that statement that she was not hitchhiking before entering the vehicle that ultimately took her to the location where the alleged offences occurred. However in conference with the Director of Public Prosecutions she has apparently admitted that she was in fact hitchhiking and that her statement was false in that respect. She gave as an explanation that she denied hitchhiking in her police statement because of a belief that it was an offence to do so.
- [21]The loss of evidence, death or unavailability of witnesses does not necessarily mean that a fair trial cannot be held: see for example R v Wrigley [1998] QCA 412 and R v Cossor [1999] QCA 403.
- [22]In R v Smith [1997] QCA 109 the Court of Appeal held that a permanent stay of an indictment was correctly refused where a witness who had previously given evidence exculpating the appellant could not be located and called at the trial.
- [23]There are of course a number of examples of cases where a permanent stay of an indictment has been ordered where there has been loss of evidence or the unavailability of witnesses: see for example R v Johannsen and Chambers (1996) 87 A Crim R 126.
- [24]In R v Edwards (2009) 255 ALR 399 the High Court said at page 405 para 31, "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 of the material which could relevantly bear upon the matter does not make the trial unfair."
- [25]I am not persuaded that the unavailability of the witnesses justifies the grant of a permanent stay of the indictment in this case. Nor are the issues of credibility of one of the complainants such that a permanent stay is warranted.
- [26]I have considered these additional matters raised by Mr Hoare on behalf of the defendant in combination with the matters considered by Judge Brabazon QC. Upon a consideration of all of these matters I'm not persuaded that the circumstances justify taking the exceptional step of ordering a permanent stay of the indictment. As has been frequently observed there is a legitimate public interest in the trials of serious charges proceeding in the usual way.
- [27]In those circumstances the application to reopen the ruling made on 3 March 2009 is dismissed.