DRR v The Queen[2014] QDC 271

DISTRICT COURT OF QUEENSLAND

12. [1]
    HIS HONOUR:  This is an application to stay an indictment. The indictment charges the applicant with one count of rape. When the indictment was originally presented in the Beenleigh District Court on 10 April 2013 the allegation against the applicant was that he had digitally penetrated the complainant’s vagina on a date unknown between 9 December 2010 and 24 January 2011.
    12. [2]
        I should say that the application seeks in the alternative other orders, the effect of which would be to have the complainant and another witness give further evidence and be cross-examined afresh. Further, that some previous evidence that has been recorded be excluded from any future trial. It is convenient to deal with the stay application first. The allegation against the applicant was that he committed the offence whilst playing a game involved throwing the complainant into the swimming pool on the property that was rented by his family at W.

    “A date unknown between 1 December 2009 and 26 January 2010.”

    “No. When he used to throw her in the pool he used to stick his fingers up there like when he threw her.”

    “No. He used to stick his fingers up her vagina when he used to throw her in the pool.”

    “The inherent power of the court permanently to stay criminal proceedings which are an abuse of the process of the court cannot be doubted. However, it is a power which is to be exercised only in rare and exceptional circumstances. Ordinarily the crown is entitled to have an accused person tried on any Information filed by the Director of Public Prosecutions. It is in the community interest that those charged with crime should be brought to trial so that if found guilty, they may be adequately punished. Nevertheless, the court is obliged to protect the integrity of its process and may permanently stay criminal proceedings which, if allowed to continue, would give rise to unfairness to an accused person or to oppression or injustice:  Jago v District Court (NSW) (1989) 168 CLR 23, 41 A Crim R 307 and Walton v Gardiner (1993) 177 CLR 378.”

    “But how does a court of criminal appeal determine whether counsel’s conduct of the trial has led to a miscarriage of justice. By what standards is counsel’s conduct judged?  And, if counsel has failed to present the case properly, must the appellant show that the conduct possibly affected the verdict?  The unattractive answer to the latter question must be that it depends on what counsel did or did not do.

    In some cases, the conduct of counsel may be such that it has deprived the accused of a fair trial according to law. If the conduct of counsel has resulted in an unfair trial, that of itself constitutes a miscarriage of justice. If, for no valid reason, counsel fails to cross-examine material witnesses or does not address the jury, for example, the accused has not had the trial to which he or she was entitled. In such a case, the failure of counsel to conduct the defence properly is inconsistent with the notion of a fair trial according to law. It cannot be right to insist that the appeal can succeed only if the court thinks that counsel’s conduct might have affected the verdict. To require the accused to persuade the court that the conduct might have affected the verdict comes close to substituting trial by appellate court for trial by jury. No matter how strong the prosecution case appears to be, an accused person is entitled to the trial that the law requires. In principle, therefore, where the trial has been unfair, the accused should not have to show that counsel’s conduct might have affected the result.

    But in other cases – perhaps the majority – the conduct of counsel – although irregular – will not necessarily deprive the accused of a fair trial. Not every error makes a trial unfair. Nevertheless, the irregular conduct of counsel may have affected the outcome. And a miscarriage of justice always occurs when there is a significant possibility that a material irregularity of the trial has resulted in the conviction of an accused person.”

    “[A]n accused will find it difficult to establish a miscarriage of justice when the alleged errors of counsel concerned forensic choices upon which competent counsel could have differing views as to their suitability.”

    “A stay should only be granted in strong and unusual circumstances”.

    “[A]ppropriately granted if the continuation of the proceedings would amount to an abuse of the process of the court.”

    12. [3]
        The complainant was born on 26 January 1998. She gave a section 93A statement on 4 September 2012. In it, she asserted that the alleged offence occurred during the summer holidays at the end of year 7. By the time the section 21AK proceedings took place in 2013 she was aged 15. These took place on 21 June 2013 in the Beenleigh District Court. At that hearing the complainant was cross-examined by the applicant’s then counsel. One of the preliminary complaint witnesses, CC, was also cross-examined on that day.
        12. [4]
            There was a further section 21AK hearing on 8 August 2013. That occurred in the Beenleigh District Court. At that further hearing the complainant was further cross-examined. It is fair to say, as submitted by the applicant’s counsel, that hearing involved a cross-examination for the most part seeking to establish the timeframe within which the complainant said the alleged offence occurred. At the conclusion of that cross-examination, the Crown Prosecutor, without objection, sought the Court’s leave to amend the dates of the charge to allege:
        12. [5]
            The matter was then transferred to the Southport District Court where the trial of the matter commenced on 10 December 2013 before his Honour Judge Farr SC on the amended indictment. During the hearing before his Honour Judge Farr the section 93A recording of a preliminary complaint witness, SL, caused his Honour to stop the recording and send the jury out and then discharged the jury as a result of the inadmissible and prejudicial evidence contained in part of her evidence. Without rehearsing what she said in her recorded statement, the effect was I consider to be that the applicant had on many occasions touched her in an inappropriate way. At one stage, she said:
        12. [6]
            A little later she repeated this when she said:
        12. [7]
            Consequently, as this was at odds with the Prosecution’s allegation it no doubt concerned his Honour. The matter then, having been adjourned, came back on for hearing. On this occasion the applicant was represented by a different barrister. This barrister made an application before his Honour Judge Reid who was to be the presiding Judge for leave to further cross-examine the complainant before the trial which was then listed to take place a few days later in the Southport District Court. Leave was granted so this could take place and the second barrister on 16 May 2014 further cross-examined the complainant. Then the trial took place before Judge Reid on the 19^th of May 2014 and a few days later the result was the applicant had been convicted of the offence.
        12. [8]
            The applicant took the proceedings to the Court of Appeal who quashed his conviction on the 2^nd of October 2014 after hearing argument from the parties. The Court of Appeal ordered a retrial and published its reasons later. It is clear that the Court acted on the trial Judge’s failure to direct the jury in accordance with section 21AW of the Evidence Act 1977. The Court, it seems to me, accepted there was inadmissible and prejudicial evidence of SL. They took the view that good sense would prevail if another barrister were briefed and that evidence, with agreement of the Crown, would not be led. I should say so that it is abundantly clear that the trial before Judge Reid proceeded without the inadmissible and prejudicial evidence of Ms L being excised. That was the whole purpose that Judge Farr – for Judge Farr proceeding to abort the first trial.
        12. [9]
            The applicant contends there have been a number of failures on the part of the barristers who have represented the applicant so far. These failures include the first barrister failing to put the applicant’s instructions to the complainant, further eliciting of prejudicial and inadmissible evidence, failing to cross-examine on inconsistencies in the complainant’s evidence and allowing objectionable evidence to be led by the Prosecution. In R v H (1995) 83 A Crim R 402 at page 410, Mullighan Justice said at page 410:
        12. [10]
            Here, the applicant submits what has occurred does give rise to unfairness to the applicant or to oppression or injustice. In addition, I should mention at this stage the judgment of McHugh J in TKWJ v The Queen (2002) 212 CLR 124 where at page 148 his Honour said:
        12. [11]
            I am satisfied that when the first counsel cross-examined the complainant in the 21AK hearing on 21 June 2013, he failed to appreciate that the fundamental purpose of his cross-examination was to challenge the evidence of the complainant with a view to demonstrating that her evidence may be unreliable or even untruthful. The complainant had, in the section 93A statement, stated that the offence occurred at the end of year 7, and in the indictment, of course, the allegation was made that this was on a date unknown between 9 December 2010 and 24 January 2011.
        12. [12]
            The problem was that the applicant’s instructions were that he had suffered a serious injury to his leg playing AFL football in May 2010. This was supported by the evidence of the complainant’s mother, see during the second day of the trial. The consequence was that he was obliged to wear a significant leg brace, which would’ve prevented him getting into a swimming pool in at least the 12 months or so after sustaining that injury. Therefore, if, as the complainant had asserted, the alleged offence occurred at the end of year 7, an acceptance of the applicant’s condition, having occurred in May 2010, with the consequence of some many months of recuperation and therefore could not access the pool, could’ve led to a conclusion that the complainant was unreliable or even untruthful.
        12. [13]
            The problem is that the applicant’s then barrister asked questions which brought about the complainant saying that the alleged offence occurred at the end of year 6. This question seemed to accept what the complainant was saying without challenging her regarding his instructions. She had never before made the allegation that the alleged offence occurred when she was about 11. This showed inexperience on the part of the applicant’s first barrister. That might be saying it very kindly. Had he pressed it, the complainant – as I think he should have – she may have agreed that her recollection for events was better when she gave the section 93A statement rather than at the time of the cross-examination and may have accepted that the event in fact occurred at the end of year 7.
        12. [14]
            All this leads to the submission, which I accept, that the conduct of the applicant’s first barrister was incomprehensible, having regard to his instructions about the football injury and the length of it for recuperation or recovery. Defence counsel did not bring to the complainant’s attention her prior inconsistent statement. Given the particular significance it had to the case, this cannot be rationally explained. The applicant’s first barrister seems to have not understood that the complainant could’ve been contradicted at the trial by the applicant’s evidence about his football injury. As can be seen, as later events turned out, his questions in cross-examination of the complainant about the applicant’s football injury were excluded, basically because they became irrelevant. Defence counsel abandoned reliance on that evidence in the section 93A statement about the date of the offence. I agree with the submission of the applicant’s counsel today that this is unfathomable. I use that word because it’s appropriate.
        12. [15]
            In addition, it can be seen that the applicant’s first barrister failed to put the applicant’s case to the complainant during the section 21A cross-examination. The problem with that is, if, at a later date, the applicant gave evidence, he could be cross-examined about that. What would be suggested to him is that he was just making up evidence as he went along because his barrister had not raised it with the complainant.
        12. [16]
            Another problem arose in the cross-examination, which tends to show that it did not do what it should have done. What the applicant’s first barrister did was to introduce evidence that the complainant spoke to a person by the name of LR. She was a child safety officer. This clearly could convey an implication that there had been something inappropriate going on which required the intervention of Ms R. In fact, this did attract the interests of the jury because they gave the judge a jury note that had to be dealt with. Nothing had been led by the Prosecution about the intervention of this person, however it was raised in cross-examination by the applicant’s first barrister, the inference being that he sought to create something about which there would be a conflict with the complainant. I do not accept that would occur to someone conducting a careful cross-examination with the instructions they obviously had.
        12. [17]
            In addition, the applicant’s first barrister cross-examined the complainant about an attempt by the applicant to kiss her or asking her for a kiss, I should say, which she refused. Again, this could only attract an implication that the jury might make that the applicant was not a nice sort of person and that he was engaging in sexual interest in the complainant. Clearly, this evidence was irrelevant and inadmissible and it could only, if I can use the word, backfire on the applicant.
        12. [18]
            There were other problems with the cross-examination on the 21^st of June 2013. The complainant asserted for the first time that she was wearing board shorts under her bikini bottoms. Defence counsel failed to cross-examine the complainant at all about the fact that this was inconsistent with what she had said in her section 93A statement on 4 September 2012; that she was wearing only a bikini top and bottom at the time. I accept the submission by counsel for the applicant that not only did the complainant make no reference at all to wearing board shorts before that answer was given in cross-examination, she mentioned nothing resembling the description given by her in cross-examination about the movement of his hand up the side of the board shorts that she was wearing.
        12. [19]
            In addition, there were other failures by counsel. The complainant had said in her section 93A statement that the applicant wanted to cuddle her all the time. No objection was ever made to that evidence. There was also references to text messages during this section 93A statement. No context was given about these. Without any context being given, the jury may well have used them to draw an adverse inference against the applicant.
        12. [20]
            I accept the submissions made by the applicant’s counsel today that the failure to object to the admissibility of this evidence confirms that no adequate consideration was ever given to the state of the evidence in the Prosecution case. In addition to the history I have referred to earlier and the failures of counsel, there was another cross-examination on 8 August 2013. When the applicant’s first barrister persisted with questioning the complainant about the applicant’s disability from the leg injury, the complainant asserted that the offence occurred before the applicant injured his leg. The applicant’s first barrister reinforced by his questions that the complainant was saying the alleged offence occurred about the school holidays that took place in 2009 and 2010.
        12. [21]
            As I said earlier, there was an amendment made to the indictment on 8 August 2013. The Crown Prosecutor had sought leave to do so. The applicant’s first barrister did not object to this amendment being made. In my opinion, there is no rational explanation for why the applicant’s first barrister conducted the cross-examination in this way. As McHugh J said in TKWJ v The Queen at page 150:
        12. [22]
            In my opinion, what I have referred to earlier are not explicable by forensic choice. While his Honour said earlier not every error makes the trial unfair, in this case, there is a combination of errors. The effect has been that the matter proceeded with inadmissible material with the applicant’s counsel having agreed to the amendment to the indictment and therefore putting away what is effectively an alibi from being considered by the jury.
        12. [23]
            The applicant’s second counsel cross-examined the complainant a third time pursuant to section 21AK. This cross-examination focused on how the complainant was thrown in the pool by the applicant and the possible participation of her brother in these throwing games. By that stage, it is not surprising from what had occurred earlier that the applicant’s case that he could not have done what was alleged against him because he was injured and recovering was lost. That is the date of the alleged offence was a material issue in the trial.
        12. [24]
            In my opinion, if the trial had proceeded with the allegation from the complainant being that the alleged offence occurred at the end of year 7, there could have been a realistic prospect of the applicant being acquitted. That is because his allegation that he was disabled and would not have been in the swimming pool was supported no doubt by objective evidence that he did suffer the injury and did undergo two operations and did consequently have to wear braces and would make it unlikely that he would enter the swimming pool.
        12. [25]
            In my opinion, this has become an unfair trial situation. That is the complainant has now had an opportunity to have reinforced by what has gone before the date of the alleged offence which no direction or no other evidence to my mind can help the applicant meet. He has lost the forensic advantage that had the complainant been kept to her initial statement as to the date of the alleged offence, he could’ve shown to my mind probably to the jury’s satisfaction that he could not have committed the offence or that the complainant’s evidence was to be doubted in that sense and they would not be satisfied beyond reasonable doubt.
        12. [26]
            I do not think this is a case which can be rectified by another cross-examination of the complainant. While counsel’s conduct cannot produce a stay for an accused person, this is a case where the conduct has gone beyond making some forensic choices which turn out to be bad. I’m mindful as his Honour, Judge McGill said in The Queen v ZSK [2006] QDC 016 that:
        12. [27]
            However, his Honour did note it may be:
        12. [28]
            See paragraph 29. In the end, I’ve come to the view that this indictment should be stayed. What occurred here, I do not accept was for forensic tactics. That is not the answer. There’s no reasonable explanation for what happened here. Judge Farr tried to warn the parties. The Crown also was engaged in the trial and should’ve seen to inadmissible material being excluded. In the end, as I’ve said, in this matter I come to the view there should be a stay.
        12. [29]
            So the order I make is the proceedings on the current indictment are permanently stayed. I find it therefore unnecessary to deal with any other issues that arose on the application. Nothing further, Mr Ryan or Mrs Kelly?
        12. [30]
            MR RYAN:   No. Thank you, your Honour.
        12. [31]
            MS KELLY:   No. Thank you, your Honour.
        12. [32]
            HIS HONOUR:   Thank you. I’ll just give this affidavit back to my Associate. Yes. I’ll just get my Associate to adjourn the Court.