R v WHA[2013] QDC 339

DISTRICT COURT OF QUEENSLAND

1. [1]
   There is presently an 18 count indictment before the court charging the defendant WHA with various offences of a sexual nature involving two separate complainants. The complainant in counts 1 to 12 is SW, who is now 17 years of age and was aged between seven and 12 years at the time of the alleged offending. The complainant in counts 13 to 18 is her sister DW, now aged 15 and aged between eight and 10 years at the relevant time. Counts 2 to 12 and 14 to 18 relate to specific offences and counts 1 and 13 allege the maintaining of a sexual relationship with the complainants.

2. [2]
   By way of pretrial argument pursuant to s 590AA of the Criminal Code, the defendant now seeks an order for a temporary stay of counts 1 to 3 and counts 6 to 18 pending his trial on counts 4 to 5 in the indictment. In the event that he is unsuccessful in that application, the defendant seeks an order for the severance of counts 13 to 18 on the indictment. He also seeks leave pursuant to s 4 of the Criminal Law (Sexual Offences) Act 1978 to cross-examine DW in relation to previous sexual activity. Finally, in the event that the defendant is unsuccessful in these applications he seeks an order for a Judge alone trial.

3. [3]
   To properly understand his application, it is necessary to make some reference to the history of this matter. The defendant, it seems, had at some time been in a relationship with the mother of the two complainants. In July 2008 the complainants along with their siblings were placed in foster care and SW there disclosed to another girl – HTL – that she had been raped by her mother’s boyfriend. Subsequently in police interviews conducted on 22 September 2008 and 30 October 2008 SW spoke of two occasions on which she had been sexually assaulted by the defendant. The first of these involved the defendant touching her in the area of her breast and vagina on an occasion when she had gone with him in his van to purchase groceries. The second occasion, again in the defendant’s van, involved an act of penile penetration. The two incidents appear as counts 4 and 5 respectively on the indictment the subject of this application. It would appear that DW was also interviewed on 30 October 2008 with no disclosures adverse to the defendant being then made by her.

4. [4]
   In July 2010 the defendant was committed for trial on those two charges in the District Court at Townsville, and a two count indictment was presented in this court on 3 December 2010. On 27 April 2011 SW was cross-examined in relation to those charges and her evidence pre-recorded in accordance with s 21AK of the Evidence Act 1977 (Qld).

5. [5]
   During the course of this cross-examination, SW was asked whether she had told a counsellor (“Kirsty”) that WHA (the defendant) had been sexually abusing her since the age of 9. She agreed that she had said this and insisted that it was a truthful statement. She said that she had not previously told anyone but Kirsty about that abuse “because WHA always said that if I told anyone, he would send me to a girls home or something like this”.

6. [6]
   In October 2011, prior to the two count indictment coming on for trial, the police officer responsible for the initial investigation received information from the complainant’s carer that she, and her sister DW, wished to speak with her in relation to further disclosures. In further interviews conducted on 23 October 2011, the two complainants then made the allegations which resulted in the defendant being charged with some 16 additional offences. Committal proceedings followed in May 2013, and on 2 September 2013 the indictment which is the subject of the present application was presented in this court. This indictment includes the two original charges (counts 4 and 5), as well as those arising from the interview of 23 October 2011 (counts 1 to 3 and 6 to 18).

The stay application

7. [7]
   Mr Hibble, who appears for the defendant, submits that for the Crown to proceed with the additional charges arising from the interview of October 2011 would effectively amount to a “delayed cross-examination”. It would establish, says Mr Hibble, that which was already apparent on the Crown case but not explored or properly investigated as it should have been. Mr Hibble’s several arguments are set out in his outline but essentially they amount to allegations of an abuse of process and resultant unfairness if the stay order were not to be made.

8. [8]
   The principles relating to the stay of an indictment on the grounds of an abuse of process are well settled. An order for a stay should be seen as exceptional and should be granted only in exceptional or extreme cases.

9. [9]
   In Jago v District Court of NSW (1989) 168 CLR 23 Mason CJ said at p 33:-

“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 … At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused … In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare.”

10. [10]
    In that same case Brennan J said at p 47:-

“Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes … adverse revelations in a public inquiry … absence of competent representation … or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. 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 … by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.”

11. [11]
    In R v Cossor (1994) QCA 403 a stay was sought on the grounds of prejudice occasioned to an accused by reason of the passage of time and the consequent inability to obtain relevant evidence. Chesterman J, with whom Pincus JA and Ambrose J agreed, made reference to the above passages from Jago before concluding:

“A stay of the prosecution of a serious criminal offence cannot be justified on the basis that there may be prejudice if the trial proceeds. Something more substantial needs to be shown. Difficulties in obtaining evidence occur frequently in criminal trials where proceedings are conducted expeditiously.”

12. [12]
    The application of these principles where considerations of prejudice and the public interest arise was considered by the Court of Appeal in Barrac v DPP; Barrac v Stirling [2007] QCA 112 where Keane JA said at [24]:

“The kind of prejudice which has been regarded as enlivening the discretion to stay a prosecution is that prejudice which detracts from the prospects of a fair trial. A person accused of crime is put to expense and is made to undergo stress in every prosecution. Sometimes that expense is increased and the stress is exacerbated by inefficiency, and even on occasion incompetence, on the part of those charged with the responsibility of presenting the case for the Crown. It has never been said that these circumstances, alone and without more, justify a stay of proceedings. The strong public interest in the conviction and punishment of serious offences may be displaced by ‘the paramount public interest’ that the administration of criminal justice proceed fairly in a case where a prosecution is pursued for an improper purpose or with no prospects of success; but in a case where a decision not to prosecute has been reversed simply because the prosecution believes that stronger evidence has become available to it, the paramount public interest is not engaged. In such a case, absent some real and incurable adverse effect upon the defendant’s prospects of a fair trial, a mere change of mind on the part of the prosecution is not, of itself, a sufficient basis for ordering a stay of proceedings. As Wilson J said in Barton v The Queen (1980) 147 CLR 75 at 111, in cases where the defect in procedure is said to prejudice an accused person involves no more than prosecutorial inefficiency, the defect must be ‘… of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’.”

13. [13]
    In the present case the clear evidence given at the pre-recording was that SW had told neither the police nor the crown prosecutor of the further incidents of abuse by the defendant. It may not therefore be surprising that the crown prosecutor did not seek to re-examine on those matters of which she had no knowledge. It was the cross-examination by defence counsel and the decision to ask the question “that wasn’t true was it” that provoked a response which, for the defendant, was unfavourable. This being so, the circumstances surrounding the making of the further disclosures require closer examination. Had the police or the prosecuting authorities subsequently sought out the complainant SW to interview her further in relation to the statement made in cross-examination, then Mr Hibble’s submissions may have greater weight. That, however, does not seem to have been the situation.

14. [14]
    In March 2009, SW’s counsellor had advised the investigating police officer by email that SW had said that the defendant had sexually assaulted her on an occasion when she was approximately nine years of age. According to the counsellor, SW provided no real detail as to what had occurred on that occasion. The officer has said that she did not at the time treat this as a further disclosure, leaving it open for the child to contact her “if she had any more to say”. In August 2009 she spoke further with SW in relation to her original allegations and she indicated to him that the defendant had driven her to the park – the place where the original offence of rape was said to have occurred – on more than one occasion. The officer immediately made arrangements for SW to attend at the police station to be further interviewed. That interview, however, did not take place with SW’s mother telephoning the officer to advise that SW no longer wished to talk with her. When the officer subsequently spoke to SW, she was told that she, SW, had forgotten what she had to tell her.

15. [15]
    For present purposes it is not necessary that I should refer in detail to all the circumstances of the alleged offending or to the detail of the complainant’s family dynamics. However, given those matters, it may not be surprising that she should have demonstrated some reticence in making full disclosure to the authorities. In any event, the inference to be drawn from the evidence presented at the committal proceedings seems to be that it was only after discussions with her carer over a period of time that SW made the decision to further contact the police. As noted above, she did this in October 2011.

16. [16]
    There is evidence from the police officer, given at the second committal hearing in May 2013 that she had received no information from the Office of the Director of Public Prosecutions prior to being approached by the complainant in October 2011. The officer had not been present at the original pre-recording of SW’s cross-examination and had not seen any transcript of those proceedings. There was no communication with the Director’s office prior to the further interview with SW.

17. [17]
    In summary it seems clear that the further disclosures by SW occurred entirely independently of anything which took place at the pre-recording conducted in April 2011. As the Crown submits, the officer took care not to revisit those matters which had been the subject of the earlier proceedings.

18. [18]
    Given this background, I am not of the view that there has been here any abuse of process such as would warrant an order for the stay of the indictment.

19. [19]
    A further matter of relevance is the fact that SW’s evidence of further abuse by the defendant would clearly be admissible on the trial of the original two charges – and vice versa. That being so, to now grant the stay order sought, effectively resulting in two separate trials involving the same evidence from the same complainant, would produce an outcome that was both artificial and unsatisfactory.

20. [20]
    The defendant does of course have the entitlement to further cross-examine the complainant pursuant to s 21AK of the Evidence Act 1997 (Qld). Mr Hibble submits however that, had all the charges proceeded together then he would have cross-examined the complainant differently than he in fact did in 2011. From my reading of the cross-examination it is not immediately apparent how this might have been so. However if some particular questions detrimental to the defendant’s case were asked under a belief that only two offences were alleged, then there appears to no reason why application could not be made for the editing of that material. While dealing with a slightly different situation, the following comments of Holmes JA in R v SBH [2008] QCA 204 at [60] could have application in such circumstances:

“An obvious means of attempting to correct the injustice would be an order under s 21AN that E and J be required to give further evidence at another preliminary hearing; and possibly, exclusion of the evidence taken under the limitations of inadequate instructions in the pre-recording of 16 October 2007. However counsel for the crown suggested, sensibly in my view, that such orders would be premature; that it would be inappropriate for any new defence counsel to have the opportunity to take instructions from the appellant and then decide, firstly, whether to seek a further pre-recording and, secondly, whether the existing pre-recording ought to be placed before the jury in an edited form. That approach has a good deal to commend it; for that reason, I would make no further orders.”

21. [21]
    It is almost trite to observe that it would have been preferable if all of the allegations in this case had emerged at the one time. I can however find no deliberate conduct on the part of the prosecuting authorities which has lead to the present situation and for the reasons set out above the application for a stay is refused.

Joinder

22. [22]
    Counsel for the defendant does not submit that the charges are incapable of being joined in the one indictment by reason of s 657 of the Code. Rather, he submits that the evidence does not meet the requirements for joinder set out in the judgment of the High Court in cases such as Pfennig v R (1995) 182 CLR 461 and, for that reason, Mr Hibble submits, the indictment should be severed. Ms Fredericks, who appears for the Crown, submits that the requisite probative quality of the evidence in this case lies in the similarity between the alleged conduct engaged in by the defendant with the two complainants.

23. [23]
    In R v Brown [2011] QCA 16 Muir JA, with whom McMurdo P and Chesterman JA agreed, spoke of the relevant test for admissibility in the circumstances as follows:

“Of course, the existence of ‘striking similarities’, ‘unusual features’ or an ‘underlying unity’, ‘system’ or ‘pattern’ is not an essential pre-requisite to the admissibility of such similar fact evidence. But evidence of the type under consideration is admissible only if there is no reasonable view of such evidence, considered together with the other relevant evidence in the case which is consistent with the innocence of the accused.

The correct approach to the determination of the admissibility of such evidence was stated by Hayne J in HML v The Queen (2008) 235 CLR 334 at [118] quoting from the reasons in Phillips v The Queen (2006) 225 CLR 323:-

‘In deciding the question of admissibility presented by Pfennig, the trial judge is not called on to decide whether the evidence which the prosecution intends to adduce does or does not establish the accused’s guilt.

…

‘The test [in Pfennig] is to be applied by the judge on certain assumptions. Thus it must be assumed that the similar fact evidence would be accepted as true and that the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury. Pfennig v R does not require the judge to conclude that the similar fact evidence, standing alone, would demonstrate the guilt of the accused of the offence or offences with which he or she is charged.’’”

24. [24]
    In this case both sets of offending involve an allegation that the defendant maintained a sexual relationship with young girls of similar age over roughly the same period of time. This fact alone could not justify the joinder in accordance with the above principles and, as Mr Hibble submits, there are some features of difference between the two sets of offending. Ms Fredericks however identifies a number of other features of the offending common to both complainants. Among those matters are the following:-

• In both cases, sexual misconduct is said to have occurred while the complainants waited with the defendant for their mother, or another woman, to attend to appointments as prostitutes;
• Both complainants describe offending conduct occurring in the defendant’s van after driving to another location whilst waiting for the appointments to finish;
• Both complainants describe the defendant as preferring that they not wear underwear;
• In the case of both girls, the conduct included digital and penile penetration and conduct which involved the defendant having the girls perform oral sex on him;
• In the case of both girls, the defendant took photographs of their vaginal areas.

25. [25]
    The Crown’s submission is that there is here a pattern common to both sets of offending; that the probative worth of the evidence lies in its capacity to demonstrate the truth of each complainant’s account and the objective improbability of “similar lies”. There will inevitably be some features of similarity and dissimilarity with offending of this sort. In my view however, the features identified by the Prosecutor here do more than merely establish that the defendant had a general propensity for sexual offending against girls. The evidence in respect of each complainant has a material bearing on the issues to be decided and supports the inference that the defendant was “guilty of the offences charged and was open to no other, innocent, explanation”. For these reasons, I would refuse the application for the severance of the charges on the indictment.

No jury order

26. [26]
    Section 604 of the Criminal Code provides in effect that an accused person who pleads not guilty is deemed to have demanded that the issues raised by such plea or pleas shall be tried by a jury and is entitled to have them tried accordingly.

27. [27]
    In 2008 a new Division 9A was introduced into the Code to allow application to the court for an order that an accused person be tried by a Judge sitting without a jury. Section 615(1), which has application in the present circumstances, provides that the court may make a no jury order if it considers it is in the interests of justice to do so. Sections 615(4) and 615(5) then provide as follows:-

“(4)  Without limiting subsection (1), (2) or (3), the court may make a no jury order if it considers that any of the following apply­

1. (a)
    the trial, because of its complexity or length or both, is likely to be unreasonably burdensome to a jury;

2. (b)
    there is a real possibility that acts that may constitute an offence under section 119B would be committed in relation to a member of a jury;

3. (c)
    there has been significant pre-trial publicity that may affect jury deliberations.

3. (5)
    Without limiting subsection (1), the court may refuse to make a no jury order if it considers the trial will involve a factual issue that requires the application of objective community standards including, for example, an issue of reasonableness, negligence, indecency, obscenity or dangerousness.”

28. [28]
    In R v Fardon [2010] QCA 317 at [81] Chesterman JA said this of the above provisions:-

“It follows that trial on indictment before a judge without a jury is exceptional. An applicant for a no jury order must show why the case comes within the exception. An applicant for such an order, prosecutor or accused, must satisfy the court that it is in the interests of justice that that be the mode of trial. If the Code expressed neutrality and no preference for a trial by a jury the order could be had for the asking. As it is the sections make it clear that there must be an application for a trial without a jury and, in accordance with ordinary principles, demonstrate why such an order is in the interests of justice.”

29. [29]
    The phrase “the interests of justice” as used in s 615(1) was discussed by Martin J in R v Prisk and Harris [2009] QSC 315 at [25] as follows:-

“The phrase ‘interests of justice’ is not susceptible of any precise definition and that, in itself, suggests that it is a concept which is to be assessed according to the type of case, the interests of the community and the imperative requirement of a fair trial. I agree with the description of Malcolm CJ in Mickelberg (1992) 8 WAR 236 that the interests of justice comprehend: the acquittal of the innocent, the conviction of the guilty, the public interest in seeing those things happen and the due administration of justice.”

30. [30]
    The present case is not one of any particular or unusual complexity in my assessment. The issues for consideration here are much the same as those involved in any number of cases of this nature which are regularly determined in this court by way of jury trial. There is moreover no suggestion that either of subsections (4)(b) or (4)(c) have application to this case. It is of relevance that the trial will involve the application of objective standards on the issue of indecency. Although not determinative of the application, this is a factor which may result in a refusal to make a no jury order.

31. [31]
    It would appear, from all I have heard during the course of argument, that the ultimate resolution of this case will involve issues of credibility – in particular, an assessment of the truthfulness and/or the reliability of the evidence to be given by the complainants. Those in my view are classically jury issues and, in the absence of any other special feature, I see no reason why they are not capable of being resolved here by a properly instructed jury. I would therefore refuse the application for a no jury order.

Section 4 of the Criminal Law (Sexual Offences Act)

32. [32]
    This application relates to an apparent conversation that DW had with a school friend on 23 August 2010. I use the word “apparent” because there is no statement from that person and no direct evidence of what was said between the two, if indeed the conversation occurred. In any event, the suggestion is that DW had then said that she had been raped by a man called Errol. When interviewed by police on 24 August 2010, DW denied being raped by Errol but made disclosures of having been offered money by Errol in return for sexual favours. The application now is for leave to cross-examine DW about this matter with a view, as I understand it, to establishing that she had made a false allegation of rape by Errol to her school friend.

33. [33]
    As it presently stands, this matter is in my view wholly uncertain. As Keane JA observed in R v Miller [2007] QCA 373, section 4 of the Act has nothing to say about a line of questioning directed to establishing that a complainant has previously made false complaints of sexual offences. In any event, the application seems to be based upon a third party notification of what was apparently said to the school friend. In the circumstances, I accept the submission for the Crown that it is not presently possible to properly determine this application and Mr Hibble has fairly conceded that the application may indeed be premature in the circumstances. There is of course no reason why it cannot be renewed at some time in the future.

Summary

34. [34]
    For the reasons set out above, I decline to make the Orders sought by the defendant. The applications are therefore dismissed.