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- Unreported Judgment
R v SDA QDC 162
DISTRICT COURT OF QUEENSLAND
R v SDA  QDC 162
District Court, Brisbane
6 September 2019
27 and 30 August 2019
Farr SC, DCJ
Proceedings against the applicant upon indictment no. 1531/19 are permanently stayed
CRIMINAL LAW – PROCEDURE – STAY OF PROCEEDINGS – DELAY – where the respondent discontinued the original prosecution on the same charges in 2007 – where a new indictment was presented in the District Court at Brisbane in 2019 – where the charges rely on the same evidence as was previously available – where there has been substantial delay – where a consequence of the delay is the loss of evidence previously available – whether consequences of delay are curable by judicial direction – whether delay in bringing proceedings and its consequences amounts to an abuse of process – whether permanent stay should be granted.
Jago v The District Court of New South Wales (1989) 168 CLR 23, applied.
Moti v The Queen (2011) 245 CLR 456, applied.
R v DCL  QDCPR 11, applied.
R v Edwards (2009) 83 ALJR 717, applied.
R v Glennon (1992) 173 CLR 592, applied.
Walton v Gardiner (1993) 177 CLR 378, applied.
Williams v Spautz (1992) 174 CLR 509, applied.
B Reilly for the applicant
J M Ball for the respondent
Cooper Maloy Legal for the applicant
Office of the Director of Public Prosecutions for the respondent
- The applicant is charged on indictment before the District Court at Brisbane with two offences of indecent treatment of a child under 16, under 12, who is a lineal descendent.
- The applicant applies pursuant to s 590AA of the Criminal Code for a pre-trial ruling that proceedings upon the indictment be permanently stayed.
- After consideration of all of the material I have concluded that the proceedings should be permanently stayed and the following are my reasons for so finding.
- The applicant’s material consisted of:
- (b)outline of submissions filed 26 August 2019;
- (c)affidavit of the applicant sworn 26 August 2019;
- (d)affidavit of Evan David Cooper sworn 26 August 2019;
- (e)supplementary outline of submissions filed with leave on 30 August 2019.
- The respondent’s material consisted of:
- (a)outline of submissions filed 27 August 2019;
- (b)copies of police interviews and statements of each Crown witness;
- (c)file note dated 15 June 2017 (Exhibit 1);
- (d)file note dated 15 June 2017 (Exhibit 2);
- (e)further outline of submissions filed with leave on 30 August 2019.
- Each offence is alleged to have occurred on a date unknown between 31 October 2002 and 26 January 2003. The complainant was seven years old at the time. The applicant is her father.
- At the time of the alleged offending the complainant was living with her mother and her mother’s boyfriend. The complainant’s mother and the applicant had divorced sometime previously and the complainant’s mother had primary custody of the complainant. The applicant had limited contact with the complainant.
- In November 2002 the applicant came to live at the complainant’s house. When he was staying there he slept on the complainant’s bed in her bedroom whilst she slept on a mattress on the floor in the same room.
- The complainant has alleged that one night the applicant woke her and said “hey have sex with me” and she responded “okay”. She has alleged he then laid on top of her holding her down and put his penis over her vagina. He then moved his hand over his penis until he ejaculated. He then went to the toilet. When he returned he put his underwear back on and went to bed.
- Count 2 relates to a further occasion when the complainant was asleep on the mattress on the floor. Again the applicant left his bed and approached her and asked her to have sex. The applicant then removed the complainant’s nightie and uncovered her vagina. He then exposed his penis and rubbed it against her vagina until he ejaculated. He then returned to his bed.
- The complainant recalled that this was the last time that such behaviour occurred and that the applicant was taken by police the following day.
- The complainant has alleged that behaviour of this type occurred approximately six to eight times.
- I understand that the applicant was taken from the house by police officers on 26 January 2003.
- The complainant first disclosed the alleged offending conduct to another when she spoke to her mother on 21 April 2006.
- She and her mother subsequently attended a police station on 5 May 2006. At that time she was 11 years old. She participated in an interview outlining the above alleged offending.
- The applicant was interviewed by police on 1 June 2006 and denied the offending.
- He was subsequently charged on 28 August 2006.
- The matter proceeded to committal hearing in the Magistrates Court at Richlands on 8 December 2006. At that time the investigating police officer and the complainant’s mother and her mother’s boyfriend were cross-examined. At the conclusion of the hearing the matter was committed for trial to the District Court at Brisbane.
- An indictment was presented in the District Court at Brisbane on 23 April 2007 at which time the matter was listed for a pre-record hearing for the taking of the complainant’s evidence.
- The pre-recorded evidence was to be taken on 15 June 2007. On that day however, after conferences with the complainant, the Crown Prosecutor decided to continue no further with the prosecution and a nolle prosequi was entered.
- The applicant contacted the complainant on Facebook many years later on 29 April 2016.
- In March 2017 the complainant approached police officer, Benjamin Martyn at the Inala Child Protection and Investigation Unit and indicated she wished to reinitiate her complaint against the applicant. In June 2017 Officer Martyn contacted the Office of the Director of Public Prosecutions to obtain reasons for the matter’s previous discontinuance. He was provided with those reasons via email on 3 August 2017.
- The complainant then provided a written statement to police in relation to the alleged offending conduct on 19 July 2018.
- Police issued the applicant a notice to appear in relation to the offences on 26 November 2018.
- On 27 March 2019 a file note of the conference held on 15 June 2007 between the then prosecutor and the complainant was disclosed to the applicant’s legal representatives. The applicant’s legal representatives were also advised that records from a Family Court proceeding (relating to the custody of the complainant) and school records relating to the complainant which had previously been subpoenaed during the last proceeding had been returned at the conclusion of those proceedings and were therefore not in the possession of the prosecution. In April/May 2019 Officer Martyn made enquiries with the complainant’s high school which revealed that no records in relation to the complainant were still in existence.
- The matter proceeded to committal hearing in the Brisbane Magistrates Court at which time the original investigating police officer, Officer Ellis, was cross-examined. The matter was subsequently committed for trial to the District Court at Brisbane.
- The indictment was presented in the District Court at Brisbane on 8 July 2019.
Reason for discontinuance
- The file note made by the person charged with the prosecution of the original proceeding records that the basis of the decision to discontinue that proceeding was:
“(The complainant) was reluctant to talk to me about the particulars of the offence and in light of this I was concerned the Crown would not be able to prove the case BRD … my decision … was also influenced by the fact that there were a number of lies that (the complainant) would be cross-examined about during the course of evidence … the insufficient prospects of securing a conviction, together with the fact (the complainant) would be subjected to vigorous XXD [sic] on previous false allegations lead me to conclude it would not be in (the complainant’s) best interests to continue … I explained that the defence were going to apply to stay the indictment and this was a further reason for my discontinuing proceedings beforehand.”
- It is accepted by both parties that the prosecutor’s reference to the complainant’s lies and previous false allegations was a reference to matters recorded in the complainant’s school records. There is no notation setting out the nature and extent of that which was recorded in those records.
- Neither the applicant nor his former legal representative have any recollection of what information was contained in those records, although the respondent accepts that it must have included information regarding the alleged lies and false allegations.
- In an addendum statement dated 23 May 2019, the investigating police officer states that he was advised by an Acting Legal Officer at the Office of the Director of Public Prosecutions that records show that the matter was discontinued after “the prosecutor formed a view that the credibility of the complainant would have been materially damaged under cross-examination by defence on the following points:
- (a)a lie told by the complainant to the prosecutor that she had not sent letters to the applicant while he was in jail, when in fact she had;
- (b)the contents of the letters show a contrast with the complainant’s description of her relationship with the defendant. The complainant stated to the prosecutor during the conference that she now called the defendant “Dan” instead of “Dad” because of what he had done to her. The letters following the offending, however, show that she had still referred to the defendant as “Dad” and encouraged contact;
- (c)a previous false allegation of the complainant “having sex” with a person called “Sam” at school;
- (d)a lie to her friends at school that her mother had bought her a plastic penis for her tenth birthday; and
- (e)a lie to her friends at school that she had “had sex with a plastic penis.”
- The investigating officer sought further clarification from legal officers at the Office of the Director of Public Prosecutions regarding the matters mentioned above but received no response.
- Neither Officer Martyn nor Officer Ellis have any knowledge and/or memory of the matters listed above. Similarly, the complainant denies knowledge of these matters as does her mother.
Consequences of discontinuance
- The applicant submits that, through the actions of the Crown in discontinuing the original prosecution, the resolution of these charges has been delayed for in excess of 12 years. He submits that to attempt to prosecute the matter again on the same evidence is unjustifiably oppressive.
- Additionally, it is submitted that the lapse of time will inevitably result in witnesses having faulty recollections as well as adding difficulty to the prospect of defending charges from so long ago.
- The applicant submits though that the most important consequence of this delay is the loss of the school records and the complainants letters which contained details of lies allegedly told by the complainant and of false allegations allegedly made by her. The applicant submits that these are not matters that potentially could have affected the credibility of the complainant, rather they were viewed by the prosecutor at the time as having that effect. The applicant submits that in the absence of such material, any trial would be plagued with unfairness. It is submitted that the credibility of the complainant would be the central issue at trial and that in the absence of such material, the applicant would be required to conduct his defence with a “key evidential hand tied behind his back”.
- The applicant further submits that no judicial direction could be made that could rectify that unfairness. It is submitted that a direction that it would be dangerous to convict simply fails to do the position of the applicant any real justice as it would not overcome the missed opportunity that he would otherwise have had to know the details of the purported lies and false complaints previously made by the complainant and to be able to put such information to her in cross-examination. The applicant submits, and in my view quite correctly, that this information was viewed by the prosecutor at first instance as being significant and it cannot have lost its significance due to the fact that time has passed or that the material has been lost.
- The respondent has submitted that:
- (a)there was no “bad faith” demonstrated in the previous discontinuance of the matter;
- (b)the prior entry of a nolle prosequi does not forbid the recommencement of a proceeding;
- (c)the proceeding is not oppressive and does not amount to conduct which would undermine public confidence in the administration of justice;
- (d)the applicant is in no different a position to those who are routinely brought before the court for matters involving allegations of historical sexual abuse;
- (e)that this matter does not fall into the “most exceptional” or “extreme” category of case which warrants the grant of a stay;
- (f)that any “defect” in the proceedings can be remedied by judicial direction; and
- (g)that the absence of the information contained in the school records or in the missing letters does not meet the threshold for the granting of a stay as it does not make the trial exceptionally unfair.
- Crown counsel emailed my associate on the afternoon of 29 August 2019 to advise that she had further reviewed the prosecution material, which included a further examination of the file note which had been previously disclosed in a redacted form to the applicant’s legal representatives and which was marked Exhibit 1 in the hearing on 27 August 2019. Upon that review, she decided to release a further version of that file note to the applicant’s legal representatives. The respondent accepts that the content of that more recent copy provides references to further information, some of which had been in the possession of the applicant’s previous legal representatives but is now no longer available.
- This further information included:
- (a)the complainant’s mother advised the then prosecutor that she had recently been called to her daughter’s school because her daughter had told other children that her mother had bought her a plastic penis for her 10th birthday;
- (b)that the complainant’s mother said that her daughter had seen a plastic penis at a friend’s house and that this is where the story had come from;
- (c)that the complainant’s mother denied buying her daughter a plastic penis
- (d)that the then prosecutor conveyed these details to the applicant’s then defence counsel on the morning that the complainant’s pre-recorded evidence was to be taken and that defence counsel was already aware of these things from information contained in the school records;
- (e)that defence counsel then showed the prosecutor the school records where, according to the prosecutor’s file note, “a number of notes were made including:-
- she had sex with a class mate “Sam” (later confirmed untrue)
- she had a boyfriend in yr 11 who pulled his pants down and said he was hot for her (later confirmed untrue)
- told friends that she wanted to sleep with boys
- told friends she’d had sex with a plastic penis (later confirmed untrue – Mother said she had taken (the complainant) to sex shop and that she was very interested in those)
- told mother that she had dreams about having sex with her mother’s partner”
- (f)that the then investigating police officer (Ellis) had attended the complainant’s school on a further occasion and had apparently conducted a second interview with the complainant;
- (g)that an officer from the Office of the Director of Public Prosecutions had attempted to discover what occurred during that interview but was told by Officer Ellis;
“(i) it was not ordered
- (ii)there were no notes
- (iii)the details of which were outlined in her statement”
- (h)that such details were not, in fact, detailed in Officer Ellis’ statement.
- (i)that the applicant’s previous legal representatives were in possession of letters that the complainant had written to the applicant whilst he was in custody for an unrelated matter, which post-dated the alleged offences and in which the complainant said things such as ‘I love you’; ‘I miss you’; ‘When are you going to call?’; ‘you’re the best dad I ever had’; ‘etc’.
- This additional information further highlights not only the significance of the missing material to the conduct of the applicant’s case, but also the gross unfairness to the applicant if the prosecution was permitted to proceed to trial.
- As I understand it, and as crown counsel has conceded, it is not known whether this file note contains information about all matters of potential relevance that were contained in the school records and whether it repeats all of the details about the matters it does mention.
- Crown counsel has also conceded that such records may well have been admissible as evidence pursuant to s 93(1)(b)(iv) of the Evidence Act 1977 and acknowledges that such opportunity is now lost to the applicant. Similarly, she has also conceded that the applicant has lost the opportunity to tender the complainant’s aforementioned letters.
- In that regard, Crown counsel has submitted that the Crown would be prepared to make admissions at trial as to the known contents of the school records and of the complainant’s letters. The difficulty with that of course, is that insofar as the school records are concerned, it would only be an admission as to some of the content of the records, and the admission would not be admissible as evidence of the facts contained therein.
- Accordingly, if the complainant and/or her mother deny knowledge and/or memory of these matters (which I understand is the case), the applicant would have no avenue for putting evidence of such matters before the court. That is a significant prejudice to the applicant, which arises directly as a consequence of the decision to discontinue the prosecution 12 years ago. It is also a prejudice which cannot be overcome by judicial direction.
- Furthermore, only the briefest of snippets of information from the complainant’s letters to the applicant are repeated in the file note and the context in which they were made is not known. In those circumstances, it is patently obvious that any admission regarding those comments would carry considerably less persuasive value than the letters themselves.
- There is no dispute that the District Court is inherently seized of the power to stay proceedings upon an indictment.
- The principles governing an application for a stay are well established. An order staying proceedings on an indictment should only be made where there is a fundamental defect going to the root of the trial, the unfairness of which cannot be relieved.
- The question of whether criminal proceedings should be permanently stayed “falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations” and among those factors “are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice”.
- The power to stay criminal proceedings is one to be used only in the “most exceptional” or “extreme” cases.
- The High Court has stated that the power should only be exercised if the continuation of the proceedings would involve unacceptable injustice or unfairness or be so “unfairly and unjustifiably oppressive” to constitute an abuse of process.
- In Williams v Spautz, the court concluded a permanent stay was justified where the prosecution was brought for an improper purpose. Mason CJ, Dawson, Toohey and McHugh JJ said:
“… there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings. Richardson J referred to them in Moevao v Department of Labour in a passage which Mason CJ quoted in Jago. The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by state and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice. (Citations removed)
- In Moti v The Queen, French CJ, Gummow, Hayne, Crennan, Keifel and Bell JJ explained that passage from Williams v Spautz as follows:
“Public confidence in this context refers to the trust reposed constitutionally in the courts to protect the integrity and fairness of their processes. The concept of an abuse of process extends to a use of the court’s processes in a way that is inconsistent with those fundamental requirements.”
- A delay in proceedings leading to difficulties in obtaining evidence is ordinarily not sufficient for the grant of a stay. As the High Court said in R v Edwards:
“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.”
- Nevertheless, this matter involves more than just missing material that “could relevantly bear upon the matter”. In this matter, the crown prosecutor discontinued the original prosecution because there were no reasonable prospects of the prosecution proceeding based in part on the fact that the complainant’s “lies” and “previous false allegations” would be placed before the jury. Clearly, that prosecutor was of the view that such matters were significant and relevant. One can well understand why that view was formed, particularly in a case that relies almost exclusively on the credibility and reliability of the complainant.
- The absence of the complainant’s school records and the letters to the applicant, with whatever information and detail they contained, strikes a dagger into the heart of the defence case. Cross-examination of the complainant would be significantly less effective than if such material was available.
- The question though is whether this matter, taking into account all relevant circumstances, falls within the category of “extreme” or “most exceptional” such that an order for a permanent stay should be made.
- In this matter, the applicant relies on the combined effect of the earlier decision to discontinue, being made as it was on the day the pre-recorded evidence of the complainant was to be taken, the potential faulty recollections of witnesses that can arise due to the length of the delay and the effect of the missing school records and letters to bring the matter into that exceptional category.
- Factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the applicant’s right to be protected against unfairness include matters such as the length of the delay, the reasons for the delay and the prejudice suffered by the applicant. To justify a permanent stay, there must be a fundamental defect which goes to the root of the trial of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.
- In this matter the prosecution was re-instituted by the complainant. It is not a matter where there has been a deliberate attempt to improve the prosecution’s chances of success by delaying it until unhelpful evidence or material is lost. Nevertheless, that is the effect of the course that this matter has followed. There can be no doubt that the complainant’s credibility and reliability would be the crucial issues at trial. The missing material would have undoubtedly proved to be very important to the applicant in challenging those issues. Whilst it is not known precisely what information was contained in that material, it is obvious that it played a significant role in the decision to discontinue in 2007.
- In my view, to allow the matter to proceed now, in the absence of such material would constitute an abuse of process as it would undermine the public’s confidence in the administration of justice in this state. The absence of that material cannot be adequately cured by judicial direction and the restrictions that would be placed on cross-examination of the complainant as a consequence of its absence would result in an unfair trial, in that, the applicant’s ability to challenge the complainant’s credibility and reliability would be significantly and relevantly impaired. Although the applicant may be able to conduct some cross-examination of the complainant based on the information supplied by the Office of the Director of Public Prosecutions, the lack of any detail in that information would likely render any such cross-examination of little utility. Furthermore, the absence of detail would prevent or significantly hinder the cross-examiner from putting sufficient particulars to the complainant such that her memory may be prompted or so that her purportedly genuine lack of recall may be appropriately challenged i.e. that it would unfairly prevent effective challenge to her credibility and reliability. Furthermore, the absence of that material positively negates any prospect of the material being tendered in the defence case.
- Whilst there is a clear public interest in serious criminal charges being brought to trial, that is not the only consideration of relevance in this matter. The maintenance of public confidence in the administration of justice is also a significant consideration.
- In Jago, Mason CJ remarked:
“The community expects trials to be fair and to take place within a reasonable time after a person has been charged.” 
- In that same case Toohey J noted:
“There is no suggestion in the present case that the prosecuting authorities deliberately caused the delay to gain some advantage for themselves.” 
- Deane J, in Jago, envisioned circumstances where an order staying proceedings would be appropriate:
“The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court’s process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed.” (my highlighting).
- As I have indicated, I accept that the decision to discontinue was made for legitimate reason and not to gain some advantage for the prosecuting authority. Nevertheless, to allow this prosecution to continue 13 years after the applicant was first charged and 12 years after the first prosecution was discontinued, on essentially identical evidence to that which existed in 2007 minus information that the then prosecutor acknowledged as being of such significance that it formed part of the reason for the discontinuance, with the inevitable reduction in memory that accompanies the passage of time, for a defendant who has reasonably understood that the prosecution ended 12 years ago would constitute an abuse of the court’s process by being oppressive and unfair to the applicant and would undermine public confidence in the administration of justice.
- The order of the court is:
- Proceedings against the applicant upon Indictment No. 1531/19 are permanently stayed.
 Which will read paragraph 13 of her statement.
 Page 5 of Exhibit 1.
 Affidavit of applicant sworn 26 August 2019; affidavit of Evan David Cooper sworn 26 August 2019.
 Paragraph 3, Statement of Benjamin John Martyn dated 23.5.2019.
 In oral submissions counsel appearing on behalf of the Director of Public Prosecutions advised the court that the information contained in paragraph 30 above came from a file note made by the prosecutor explaining the decision to discontinue. That file note has not been disclosed to the applicant on the basis of legal professional privilege.
 ie: a Longman direction and/or a Robinson direction.
Jago v The District Court of New South Wales (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378.
Jago v The District Court of New South Wales (1989) 168 CLR 23 per Mason CJ at 34 and Gaudron J at 78.
 Walton v Gardiner (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 395-396.
 Jago v The District Court of New South Wales (1989) 168 CLR 23 per Mason CJ at 31; R v Glennon (1992) 173 CLR 592 per Mason CJ and Toohey J at 605.
 R v Edwards (2009) 83 ALJR 717 per the court at 720-721, .
 (1992) 174 CLR 509.
 At 520.
 (2011) 245 CLR 456.
 At 478 .
 (2009) 83 ALJR 717 at .
Jago v The District Court of New South Wales (1989) 168 CLR 23 per Mason CJ at 33.
 Jago v The District Court of New South Wales (1989) 168 CLR 23 per Mason CJ at 34.
 Statement of complainant dated 19 July 2018 at  and .
 I am assuming that leave to cross-examine the complainant pursuant to s 4 Criminal Law (Sexual Offences) Act 1978 would be granted by the trial judge.
 Jago v The District Court of New South Wales (1989) 168 CLR 23 at 33.
Jago v The District Court of New South Wales (1989) 168 CLR 23 at 72.
Jago v The District Court of New South Wales (1989) 168 CLR 23 at 58; see also R v DCL  QDCPR 11 at  per Lynch QC DCJ.
- Published Case Name:
R v SDA
- Shortened Case Name:
R v SDA
 QDC 162
06 Sep 2019