R v Molloy[2022] QDC 210

DISTRICT COURT OF QUEENSLAND

1. [1]
   The defendant has sought a direction from the Court pursuant to s. 132BA Evidence Act 1977 (the Act) in relation to delay.  The proposed direction is marked for identification and provides:

This is a direction I must give you relating to the issue of the delay in complaint being made by the complainant and the prosecution of the defendant for these charges.

It is most important that you appreciate fully the effects of delay on the ability of the defendant to defend himself by testing the prosecution evidence or bringing forward evidence in his own case.

In this regard, I refer to the following specific difficulties encountered by the defendant in testing the evidence of the prosecution or bringing forward evidence of his own. These difficulties include but are not limited to:

-the lack of or loss of documentary evidence:

• records from Curves Gym, including for the period of the allegations (2006/2007);
• the handwritten notes Mrs Fuller stated she had taken at the time she spoke with the complainant in 2010;
• photos of the home;

-the lack of evidence from witnesses that could be expected to have been able to provide the court with relevant evidence:

• the manager and owners of Curves Gym, including for the period of the allegations (2006/2007);
• a person connected with the dance school the complainant is said to have attended at the time;

-The capacity of witnesses, including the complainant, to accurately recall events that occurred and the possibility that their recollection has been distorted as a result of the frailty of memory, or for other reasons:

• inconsistencies within the complainant’s own evidence [one example: whether her and the defendant’s pyjamas were on or off at the time of Count 1]; inconsistencies between the complainant and other witnesses recollections about what disclosures she made to them [one example: the complainant stated she first told her friend Zara Ferguson of some of the defendant’s conduct but Zara Ferguson does not recall this conversation; another example: the complainant stated she recalled telling Mrs Fuller that “Dad and I hump” but Mrs Fuller does remember her using those words].

2. [2]
   I have declined to make a direction in the terms proposed.  Instead, I have made a direction in more confined terms.  The terms of the direction which I have made are as follows:

It is important to you to appreciate the effects of delay on the ability of the defendant to conduct his defence by testing the prosecution case or bringing forward evidence of his own.

In this case, I refer to the following specific difficulties identified by the defendant in testing the evidence of the prosecution or adducing his own evidence.  First, it is likely that the long delay between the alleged offending and the complainant in November 2018 has resulted in business records relating to Mrs Molloy’s membership or otherwise of Curves between September 2006 and September 2007 being no longer available.

Second, it is likely that the delay meant that the detail of the recollection of witnesses from the gym, especially the manager, had decayed by 2018 when Officer Stibbert interviewed them.  And third, it is likely that the long delay has also resulted in the handwritten diary notes of Ms Fuller recorded at the time of the complaint and recording the terms of the complaint were lost.

The first two difficulties that occurs put the defendant in a significant disadvantage in responding to the prosecution case by testing Ms Molloy’s evidence that Mrs Molloy went to Curves in the 2006, 2007 period.  While the defendant has the evidence of the manager, such as it was, and of Mrs Molloy, contemporaneous documents might have significantly corroborated their evidence. 

The third difficulty, the loss of the handwritten notes, puts the defendant at a significant disadvantage in responding to the prosecution case by testing Ms Molloy’s evidence as to what she told Mrs Fuller.  Again, while the defendant has the evidence of Mrs Fuller and that evidence is largely inconsistent with Ms Molloy’s recollection, the contemporaneous handwritten notes might have decisively resolved the difference between the witnesses in favour of the defendant.

The delay means not that you should speculate about what the evidence actually would have been but rather, it means that the evidence relied upon by the Crown can’t be as fully tested as it otherwise might have been.  I direct you that considering the evidence in this case, you need to take into account the disadvantage the defendant is at which I’ve identified which means the complainant’s evidence has not been tested to the extent that it otherwise could have been, nor has the defendant been able to bring forward the evidence to challenge it that might have been available.

3. [3]
   Section 132BA of the Act provides:

   1. (1)
      This section applies in relation to a criminal proceeding in which there is a jury.
   2. (2)
      The judge may, on the judge’s own initiative or on the application of a party to the proceeding, give the jury a direction under this section if the judge is satisfied the defendant has suffered a significant forensic disadvantage because of the effects of delay in prosecuting an offence the subject of the proceeding.
   3. (3)
      For subsection (2), a significant forensic disadvantage is not established by the mere fact of delay in prosecuting the offence.
   4. (4)
      In giving the direction, the judge—

      1. must inform the jury of—
         1. the nature of the disadvantage; and
         2. the need to take the disadvantage into account when considering the evidence; but
4. (b)
   must not warn or in any way suggest to the jury that—

   1. it would be dangerous or unsafe to convict the defendant; or
   2. the complainant’s evidence should be scrutinised with great care.
      5. However, the judge need not give the direction if there are good reasons for not doing so.
      6. The judge must not, other than under this section, give the jury a direction about the disadvantages suffered by the defendant because of the effects of delay in prosecuting the offence.
      7. In this section—

      "delay”, in prosecuting an offence, includes delay in reporting the offence.

5. [4]
   The background to the introduction of that section was explained recently by the Court of Appeal in R v BDJ [2022] QCA 108 as follows:

28. This provision was enacted in response to recommendation 65 of the Criminal Justice Report released in August 2017 by the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission). As noted in the Explanatory Note for the Bill that was enacted as the Amendment Act (at pp 4, 8 and 14), the purpose of the amendment is to modify jury directions and warnings in relation to delay and forensic disadvantage, as the traditional directions were “founded upon flawed presumptions about victims, including an assumption that a genuine victim will complain at the first reasonable opportunity”. The traditional direction which s 132BA modifies is that based on Longman v The Queen (1989) 168 CLR 79. Relevantly, the essence of the traditional Longman direction (at 91) is a warning to the jury about the accused person’s “loss of those means of testing the complainant’s allegations which would have been open to him had there been no delay in prosecution” based on the circumstance of that case. The identified danger is that an accused person can only test forensically whether the complainant’s account is untruthful or unreliable after the accused has been informed of the allegation and the lapse of time inhibits the accused from adequately testing the complainant’s evidence, including not being able to explore in cross-examination matters of detail: see paragraph 4 of Applegarth J’s helpful summary of the Longman direction in R v MBX [2014] 1 Qd R 438  at [105].
29. The complaint to police in Longman had been made 25 years after the first incident and 21 years after the second incident. The complainant who was six years old at the time of the first incident had described that she was asleep on each occasion and was awakened by her stepfather touching her genitalia. The majority judgment’s solution to the identified danger arising from the delay was set out at 91:

“The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation, and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice.”

30. Section 132BA of the Act does not purport to overrule the objective of a Longman direction to avoid a perceptible risk of miscarriage of justice by explaining to the jury how the accused person may in the circumstances have been disadvantaged by the effects of delays in the complaints being made and prosecution of those complaints, but it regulates the language that can be used by a trial judge in doing so and prohibits the trial judge from warning or suggesting to the jury that they should be cautious of convicting the defendant as a result of the significant forensic disadvantage due to the effects of delay. This ensures the objective of a direction about delay in making the complaint or the prosecution is achieved without using extreme language directed against the complainant that may overcompensate an accused person for any significant forensic disadvantage attributable to the effects of such delay.

5. [5]
   It should be specifically noted that the purpose of the section is to modify the terms in which jury directions and warnings were given about delay.  However, it does not purport to overrule the object of the Longman direction, which is to avoid the perceptible risk of a miscarriage of justice by explaining to a jury disadvantage which might flow from delay which the jury might not otherwise apprehend using their own experience, but which might be evident to lawyers.  That observation must be considered, however, in the light of the words of the Act.  It might be thought that those words do change in substance the circumstances in which a Longman direction may be given, or at least codifies what was previously uncodified.
6. [6]
   Section 132BA (2) provides that the Judge may give a direction under the section “if the Judge is satisfied the defendant has suffered a significant forensic disadvantage because of the effects of delay”.   Section 132BA (6) prohibits a direction from being given about delay other than under section 132BA.  Accordingly, a direction about delay cannot be given on one view of it, unless the statutory precondition identified in 132BA (2) is met: i.e., that the Judge is satisfied that the defendant has suffered a significant forensic disadvantage because of the effects of delay.
7. [7]
   Establishing the basis for a 132BA direction therefore requires the applicant or the Court to identify significant forensic disadvantage caused by the effects of delay.  How is this to be approached?  Some guidance was given to the Court in R v BDJ.  Having noted the cognate terms of the equivalent New South Wales provision, the Court of Appeal observed:

   33. The effect of the NSW provision was considered in Jarrett v R (2014) 86 NSWLR 623. After summarising the effect of the NSW provision in Jarrett at [53], Basten JA at [54] set out the requirements for a direction given in accordance with the NSW provision:

“Consistently with this scheme, the judge must identify the significant forensic disadvantage and must inform the jury of the nature of that disadvantage; the direction will therefore need to be case-specific. In directing the jury of the ‘need’ to take that disadvantage into account, it will usually be expected that a direction would identify, so far as it is not obvious, how the disadvantage may affect the jury’s consideration of the evidence. This aspect of any direction will not be straightforward: the usual consequence of delay is the loss of evidence or the loss of opportunity to test evidence; each involves a counterfactual assumption.”

34. It is noteworthy that Basten JA recognised at [54] that it may not be essential for the trial judge to state how the disadvantage may affect the jury’s consideration of the evidence where it would otherwise be obvious to the jury. Basten JA’s observation on that aspect of the direction to the jury about the need to take the disadvantage into account when considering the evidence not being “straightforward” as the usual disadvantage of loss of evidence or the loss of opportunity to test evidence “involves a counterfactual assumption” is apt. The counterfactual assumption may involve speculation as to what would have been the nature of the lost evidence or the nature of the lost opportunity. Care must be therefore exercised by a trial judge in giving this aspect of the direction in not suggesting what the lost evidence or the lost opportunity to test evidence may have revealed, where there is not otherwise evidence before the court of the content of the lost evidence or the material that may have been available for testing the complainant’s evidence. After all, a jury is always directed to, and can only, determine the facts of the case based on the evidence placed before them in the court room and only on that evidence and not what the jury may surmise is in evidence or material that was not available for the trial. Care must also be exercised by a trial judge to ensure that any identification of how the disadvantage may affect the jury’s consideration of the evidence does not, in substance, amount to a warning that is proscribed by s 132BA(4)(b) of the Act.

8. [8]
   I particularly wish to note the emphasis placed by the Court on the place of the requirement in 132BA(4)(a) to inform the jury of the nature of the significant forensic delay and the need to take it into account when considering the evidence.   This highlights the requirement that the application for a 132BA direction must be articulated by reference to the need expressly to identify the significant forensic delays said to exist.  This, in my view, will usually require the significant forensic disadvantage to be identified by reference to one or more identified effects of delay.  That is, the applicant must identify what the effects of the delay are said to be in a particular case and then identify how those facts cause a significant forensic disadvantage.  It is difficult to see how a direction can be given consistent with the requirements of the Act in any other way. Further, failure to specifically identify the effects and the linked disadvantage is apt to give rise to the risk that the Court will fail to respect the statutory constraint in 132BA(2). 
9. [9]
   In approaching the proper construction of the section, assistance might be found in other parts of Basten JA’s judgment in Jarrett v R (2014) NSWLR 623 in which his Honour said:

59. To assess the challenge to the trial judge’s refusal to give the proposed form of direction, it is desirable to identify how the question should be approached. However, the operation of s 165B should not become encrusted with judicial exegesis of the kind surrounding the “Longman direction”, which led to its enactment. Suffice it to say, there are a number of broad considerations which bear upon its application in the present case.
60. First, the proper focus of the section is on the disadvantage to the accused; it does not reflect any degree of prejudgment of the reliability of a complainant’s evidence with respect to a sexual offence, aspects of which underlay certain observations in Longman: see Spigelman CJ in JJB v The Queen [2006] NSWCCA 126 161 A Crim R 187 at [4] -[8].

61. Secondly, the concept of delay is relative and judgmental. Where both complainant and law enforcement authorities have acted with all reasonable expedition, it is not usually apt to describe any lapse of time as involving “delay”. Delay is suggestive of hesitation or indecision of the complainant or inefficiency on the part of authorities. That is not to say it involves blameworthy conduct: quite significant lapses of time may be reasonable in the context of a child who is the victim of sexual assault. Whether that which is not unreasonable constitutes “delay” for the purposes of s 165B will depend upon particular circumstances.

62. Thirdly, although various factors may contribute to a delay, where a significant element is misconduct on the part of the accused, any resultant forensic disadvantage may not be characterised as a consequence of delay or, in the alternative, may provide a good reason for a judge not to give a direction, pursuant to the permissible exception in s 165B(3). In the present case, the complainant alleged that the applicant had said to her, “this is our little secret and if you tell anyone I’ll kill myself”: ERISP Tcpt, Q47. It is doubtful whether such a manipulative threat of self-harm, made by the father of a 12 year old girl’s best friend, is any less deplorable than a threat of harm to the victim. If the trial judge had been satisfied that such a threat had been made (and it appeared to be corroborated by the documented circumstances of the applicant’s admission to Richmond Clinic when he understood a charge might be laid against him, he then being suicidal) that would have provided a good reason not to treat the direction as required or, if the power were engaged, a good reason for not exercising it.

63. Fourthly, if the accused is put on notice of the complaint, any failure to make inquiry or investigation thereafter will not normally constitute a consequence of the delay, but a consequence of the accused’s own inaction. The applicant complained that the trial judge took that into account, but he was wrong to do so. However, the circumstances of his admission to the Richmond Clinic in October 2007 were inconsistent with the position of a person told of a potential allegation for the first time or even after warning, where he knew the complaint was utterly false. If he had wanted further details from the complainant as to the time and place where the offence was said to have been committed, there was no evidence that such information would not have been provided, even if she declined to be interviewed. (At that time, it seems the police knew few details.) Further, since he feared gaol, it would not have been unreasonable for him to seek legal advice at that time, as he did in March 2009, when the police had a basis to charge him. However, there was also no basis in the evidence for inferring that, if told of the general nature of the charge, he would have made inquiries at that time of his daughter.

64. In short, the assertion that the trial judge should have been satisfied that the applicant had suffered a significant forensic disadvantage as a consequence of delay, has not been made good. Even if it had been, there were good reasons why the trial judge would not have erred in declining to give a direction in the terms sought.

10. [10]
    While the Court of Appeal in R v BDJ did not specifically refer to these observations by the Court in Jarrett v R, the Court did note the similarity of the New South Wales provisions.  His Honour’s observations provide a good example of the manner in which the section falls to be applied where the defendant was on notice of the alleged offending and/or made threats to prevent its disclosure.
11. [11]
    That latter observation by his Honour^[1] does however raise a difficult point of practical application for the section.  It seems that his Honour is suggesting the trial judge had to form a view on whether a threat made to attempt to ensure the silence of the complainant was made to inform, inter alia, the discretion to refuse to give a direction. 
12. [12]
    However, the existence of a threat might be, probably would be, tied up with the fundamental issue at most trials of sexual offences against children, that is, whether the offending occurred at all.  It is unclear, at least to me, how a trail judge could properly form an opinion about such a fact before the jury has returned a verdict, at which time it is too late to give a direction. This directs attention to the question of how the factual foundation for the effect and the consequential serious forensic disadvantage is to be established, and indeed, how the factual foundation for the judgment as to whether to exercise the residual discretion is to be laid.
13. [13]
    In my respectful view, the following is the correct approach to this issue. 
14. [14]
    First, there must be evidence given at trial which tends to show, on the balance of probabilities, that the defendant has suffered a significant forensic disadvantage caused by the effects of delay or tends to show facts which sustain the reason for giving the direction.  While that will, of course, include inferences reasonably drawn from the facts, including inferences drawn from the particular experience of Judges and criminal lawyers as to the effects of delay and its impact on forensic disadvantage, Those inferences must ultimately arise from evidence given at trial.
15. [15]
    This must be so.  How can a Judge properly instruction a jury as to the nature of significant forensic disadvantage by reference to, ultimately, facts not established by evidence given at the trial? After all, the jury is to decide the case solely on the evidence at trial.
16. [16]
    This point explains my refusal to direct the jury about the significant forensic disadvantage said to arise from the loss of the opportunity to photograph the home where the offending was alleged to have occurred or the loss of the opportunity to obtain evidence from a person connected with the dance school at which the complainant was said, by her mother, to have attended every Saturday morning.   While the defendant’s draft direction sought a direction that significant forensic disadvantage arose from those matters, there was no evidence either that the home had been demolished or could not now be photographed, nor that the occupiers refused to permit inspection.  Similarly, there was no evidence that a person connected with the dance school could not be found nor that if found, they could not or would not give evidence.
17. [17]
    The defendant has known about the particulars of this offending from at least December 2018.  There has been ample time to investigate those matters.  In the absence of evidence about them, I reject the proposition that I should speculatively infer that they are effects of delay, much less that there is any significant forensic disadvantage arising from the loss of that evidence or the loss of the opportunity to obtain it.
18. [18]
    The second issue specifically raised by the defendant in its proposed direction, which I cavil with, is that stated in as follows:

The capacity of witnesses, including the complainant, to accurately recall events that occurred and the possibility that their recollection has been distorted as a result of the frailty of memory, or for other reasons:

1. (a)
   inconsistencies within the complainant’s own evidence [one example: whether her and the defendant’s pyjamas were on or off at the time of Count 1];
2. (b)
   inconsistencies between the complainant and other witnesses’ recollections about what disclosures she made to them [one example: the complainant stated she first told her friend Zara Ferguson of some of the defendant’s conduct, but Zara Ferguson does not recall this conversation; another example: the complainant stated she recalled telling Mrs Fuller that “Dad and I hump” but Mrs Fuller does remember her using those words].

19. [19]
    In my respectful view, the potential for decay of recollection over time is not of itself, an effect of delay which automatically causes a significant forensic disadvantage, at least not based on the proposition in the defendant’s draft direction.
20. [20]
    The defendant identifies inconsistencies in the evidence and, for that matter, not particularly remarkable inconsistencies.  While these inconsistencies might arise as the result of the decay of memory over time, they also might not.  I note in that regard that Ms Gallardo and Ms Molloy had differing recollections of what their conversations were, even though they occurred in 2018.  Further, I do not understand why inconsistency itself creates a significant forensic disadvantage.  It is certainly a disadvantage to the Crown in this case on the evidence led but, it does not make it difficult to test the complainant’s evidence.
21. [21]
    The third issue is the defendant’s proposed direction relating to the complainant’s inability to recall precise details of the circumstances surrounding the incidents which make it difficult for the defendant to throw doubt on her evidence by pointing to circumstances which may contradict her.  The difficulty with this, an effect of delay that causes significant forensic disadvantage, is it, in my view, does not properly or fairly characterise the evidence actually given by Ms Molloy in the context of the evidence given at the trial as a whole.  In my respectful view, contrary to defendant’s proposition, an analysis of Ms Molloy’s evidence demonstrates that she in fact gave relatively precise evidence.  She committed herself to very specific account of how, when, where and, in what circumstances the alleged offences occurred. That was so particularly for the counts, other than count 2, where she committed herself quite firmly to the offences occurring on Saturday morning in her parents’ bedroom or in the bathroom after her mother went to the Curves gym in the year between 2006 and 2007.
22. [22]
    She also gave a very specific description of the count 4 to count 6 events.   This specificity in her evidence was, I thought, unusual for someone giving evidence about events when she was five or six years old where that evidence was first recorded more than 10 years after the event.  That specificity, far from giving rise to a forensic disadvantage, gave rise to a forensic advantage, in that it permitted the defendant directly to attack her evidence by evidence from Mrs Molloy and from the manager of Curves at the time, albeit that evidence was given on a hearsay basis.  The defendant knew from at least 2018 of the detail of the account.  There is no basis to think that it was too vague to permit him reasonably to instruct his counsel as to cross-examination on that count and the cross-examination, in my view, was effective.
23. [23]
    On this Curves issue, there was, in my view, a sufficient basis for a direction by reference to loss of the opportunity to obtain the Curves business records and, perhaps, a fresher recollection from the manager or the owners about Mrs Molloy’s membership in 2006 and 2007.  That was only because contemporaneous written documents are particularly strong evidence where recollections conflict. 
24. [24]
    However, even in this circumstance, the evidence as it developed made the case for a direction a modest one.  The defendant was able to mount a strong attack on the detailed story given by Ms Molloy through his wife’s evidence and the manager’s hearsay statement.  The evidence from Mrs Molloy was particularly compelling in the context of this trial, given that she was able to contradict directly not only the Curves evidence but also give evidence suggesting a lack of opportunity for the offending to occur on a Saturday or at all. Further was her evidence contradicting the key allegation by Ms Molloy as to how she caused the offending to end.  In that regard, Ms Molloy said that she asked her mother to wake her up and say goodbye to her before she went to the gym.  Mrs Molloy said that never happened.
25. [25]
    Mrs Molloy was not vigorously cross-examined.  It was not suggested she was deliberately not telling the truth.  There was little by way of suggestion that her recollection was substantively inaccurate. 
26. [26]
    It might be thought that the forensic disadvantage arising from the effective delay on the opportunity to obtain the Curves records was, in the end, rather modest.  In any event, a direction on that effective delay and its significant forensic disadvantage was given.
27. [27]
    In an interesting aside, Mr Turner argued that even if there was limited forensic disadvantage because of the availability of Mrs Molloy to give evidence, and the evidence of the manager, there was a significant forensic disadvantage because the defendant had to call Mrs Molloy rather than have the opportunity to rely on other contemporaneous documents to answer the Curves issue. Mr Turner informed me that answering the Curves issue was central to the decision to call Mrs Molloy despite many other seemingly damaging points she made in her evidence.  I accept that is so.
28. [28]
    However, when pressed as to what the significant forensic disadvantage was from having called Mrs Molloy, he submitted that it resulted in the loss of the advantage of last address. I am not sure just how much of an advantage it is to address last, however reasonable minds could differ about that.   Even accepting that it is a disadvantage to have to address first when one would otherwise have addressed last, I do not accept that that is a significant forensic disadvantage with the scope of the meaning of that phrase in the context of the section.  I hold that view for these reasons.
29. [29]
    First, section 132BA(4)(a) requires the Court to inform the jury of the nature of the disadvantage and the need to take it into account when considering the evidence.  It is impossible to see how a Judge could meaningfully describe the nature of the disadvantage to a jury of addressing them first, not second.  Any such direction would seem to me to inevitably create a risk the jury would not give equal weight to both addresses. 
30. [30]
     Second, it is impossible to see how a Court could explain how to take that disadvantage into account when considering the evidence which is precisely what the Act dictates the direction should do.  The idea that the timing of the submissions as to how to evaluate the evidence should be taken into account in considering the evidence is meaningless.
31. [31]
    Third, as is evident from the preceding two points and from the passages from R v BDJ, section 132BA is concerned with the loss of opportunity to test evidence or the loss of evidence.  It is not about loss of a tactical advantage at trial, even assuming last address is a tactical advantage.
32. [32]
    There was then the significant forensic disadvantage said to have arisen from the loss of the handwritten notes prepared by Mrs Fuller of the complaint to her in 2010.  I accept that those notes were likely lost because of the passage of time before the complaint was made in 2018 and that if a more prompt complaint had been made, they would likely have been available.  Although Mrs Fuller contradicted Ms Molloy’s evidence of what Ms Molloy recalls telling her, such notes might have been important again as contemporaneous documents, bearing in mind, the power of such documents as being probative of what happened at the time. 
33. [33]
    I am doubtful that the significant forensic disadvantage from loss of opportunity to obtain those notes was particularly large given the inconsistency, in any event, in the recollections of Ms Molloy and Mrs Fuller.  Further, even on Ms Molloy’s account, her complaint was very general, and one might think not particularly persuasive.  However, I was ultimately persuaded that a direction should be made on that issue as the defendant requested and I did make that direction.
34. [34]
    That leaves the penultimate paragraph of the defendant’s proposed direction.  Shorn of the specific matters raised in the preceding paragraphs of the proposed direction, that paragraph went close to a submission that there was a significant forensic disadvantage merely because of delay.
35. [35]
    In any event, the overall forensic circumstances of this particular trial, which I have already outlined, did not support the conclusion that there was an inchoate disadvantage of the kind articulated in that paragraph.
36. [36]
    For those reason, I did not make the direction sought by defendant but made the direction ultimately made at the trial.