DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant is charged that on a date unknown between 19 March 1989 and 16 April 1989 at Townsville he raped the complainant.

2. [2]
   By this application he seeks an order permanently staying the indictment on the grounds of abuse of process and the impossibility of obtaining a fair trial.

Factual background

3. [3]
   The complainant was aged 16 years 2 months at the time of the alleged offence. Although she was attending school, she had been drinking at licensed premises since the age of 14 years. At the time of the alleged offence the complainant was sexually active with her then partner.

4. [4]
   The complainant alleges that she was raped by the applicant at his apartment following a social gathering. The offence is said to have occurred when the complainant remained at the apartment after all other guests had left. The circumstances of the alleged offence involved a degree of physical violence which included the applicant dragging the complainant to his second floor apartment.

5. [5]
   A complaint was not made to the police for some eighteen and a half years. The complainant was then living in Adelaide. By this stage she was 34 years of age. She contacted a police officer in Townsville and was advised to report the matter to the South Australian Police. Between December 2007 and May 2009 the complainant attended the South Australian Police on five occasions to complete her statement. The arresting officer in Townsville received the complainant’s official statement from the South Australian Police in November 2009. The investigation proceeded and between February and November 2010 the police obtained statements from a number of witnesses. Statements were obtained from further witnesses in March 2011.

6. [6]
   The applicant was charged on 17 March 2011, some 22 years after the alleged offence. He was committed for trial on 29 November 2011. The indictment was presented on 24 May 2012.

7. [7]
   The first person the complainant saw after the alleged offence was a taxi driver. At this stage the complainant was “physically hurt” and “extremely distressed”. It has not been possible to attempt to identify the taxi driver.^[1]

8. [8]
   The complainant then went to a flat where she saw C and N. She did not make a complaint to them.

9. [9]
   The complainant’s then boyfriend, A made a statement in November 2010 stating that he spoke to the complainant the day after the alleged offence and she gave some indication that something sexual had occurred involving the applicant, although the complainant said “I don’t blame him”.

10. [10]
    The complainant says that about a week after the alleged offence she told her best friend, N. However in her statement dated 11 March 2010 N says that she does not recall any complaint having been made to her.

11. [11]
    In 1990 the complainant told a former high school friend, T that she had been raped. T has made a statement to the police dated 4 May 2010.

12. [12]
    In 2002 or 2003 the complainant told her father that she had been raped during her final year at school. Her father has made a statement to police dated 18 February 2011.

Submissions for the applicant

13. [13]
    Mr Boe, who appeared with Ms Morreau for the applicant, submits that the prolonged delay in the making of the complaint and the subsequent investigation are sufficient factors to justify the exercise of discretion to permanently stay the indictment. It is submitted that the prolonged delay is unexplained and the applicant did not in any way contribute to it. Moreover it is submitted that the effect of delay upon the quality of the available evidence would result in an unfair trial.

14. [14]
    The complainant says that she was “in shock” to explain why she did not promptly tell her best friend or her boyfriend. It is submitted that even if that is a satisfactory explanation there is no reason why the complainant did not make a police complaint for more than 18 years. There was then a further delay in the commencement of proceedings for three and a half years. It is submitted that that delay is inexplicable. Furthermore it is submitted that the delay has led to impairment of the recollections of the relevant witnesses and the non collection or preservation of material evidence.

15. [15]
    It is pointed out that the failure of the complainant to make a prompt complaint to police means that there was no opportunity to gather forensic evidence in the nature of a medical examination or DNA analysis.

16. [16]
    It is submitted that the delay has resulted in an impairment of the capacity of relevant witnesses to recall important events and conversations. The complainant says that she had conversations with her then boyfriend A during the evening and further conversations with C and N. These witnesses all have considerable difficulty recalling details of the relevant events. For example C said in his police statement that:

“This is everything that I can properly remember about this matter. Due to the amount of time that has passed since these events, I cannot recall a lot of specific detail. Although I cannot recall all the details, I can also not recall these events well enough to be able to state whether certain other things did or did not happen.”^[2]

17. [17]
    It is submitted that it is particularly significant that N said in her statement to the Police dated 11 March 2010 that she does not remember the circumstances of having gone to the applicant’s house or who she was with. She also says that she cannot recall any particular night or any incident or conversations involving the complainant that would be relevant to any police investigation. She says that she only has a very vague recollection of this period in her life and does not recall any other detail about it.

18. [18]
    Although the witnesses have been cross-examined at the committal hearing it is submitted that any further cross-examination is unlikely to remedy their fading memories.

Submissions for the respondent

19. [19]
    Mr Cowen for the Crown submits that there is a strong public interest in the prosecution of serious offences. He submitted that directions to the jury would be sufficient to guard against the difficulties created by the delay.

20. [20]
    In relation to the delay by the complainant it is submitted that it is not uncommon for there to be a significant delay. It is pointed out that the complainant was 16 years 2 months of age at the time of the alleged offence. It is submitted that the making of the complaint was a difficult process for the complainant. She attended an Adelaide Police Station where she resided at the time on five occasions to complete her statement. The South Australian Police Officers who dealt with her said that during the time that she provided the statement she was upset, emotional and tearful. After the first attendance at the Adelaide Police Station arrangements were made for the complainant to access counselling and psychological services. The complainant then requested further time for counselling before speaking to the police.

21. [21]
    It is pointed out that the complainant explained her reasons for not making an early complaint in her statement and at the committal hearing. In her statement she said that she told her former best friend and former boyfriend within weeks of the alleged offence and they were dismissive of her. At the committal hearing during cross-examination the complainant said that she didn’t make an official complaint because of the negative experience a friend had after she had made a rape complaint. The Police have obtained information about that case including newspaper articles in the Townsville Bulletin. The defendant was found not guilty of charges of rape and indecent assault on 15 February 1989.^[3]

22. [22]
    As to the delay in the investigation, it is submitted that this is properly explained. First it is pointed out that the complainant lived in Adelaide at the time of making the complaint and the investigation involved the Police Services in Queensland and South Australia. Secondly it is pointed out that the defendant’s name was not known. Police investigations to locate the defendant were unsuccessful. It was not until March 2011 that the arresting officer travelled to Redcliffe and questioned the defendant. He remembered the complainant and working with her at the Sheraton Hotel. In addition he admitted that the complainant visited his residence one night with two of their friends. He was arrested at the conclusion of that interview.

23. [23]
    Mr Cowen submitted that the allegations and the surrounding circumstances are not complex. It is pointed out that the alleged offence occurred within a fairly narrow timeframe. This is not a case where witnesses are deceased or unable to be located. Five witnesses directly relevant to the allegation have been located and have given statements or recorded interviews. The witnesses are available to give evidence at the trial. While it is accepted that the recollections of the witnesses have deteriorated over time this can be highlighted by the applicant.

24. [24]
    It is submitted that it is not unusual in cases involving sexual offences for there to be no forensic evidence even where the allegation is one involving physical violence and sexual penetration.

Consideration

25. [25]
    Mr Boe submitted that as the complainant lived an adult life style, the present case was quite different to those where it is recognised that children who are victims of sexual offences may feel unable to disclose the abuse, perhaps because of the household dynamics.^[4]

26. [26]
    On the other hand, as I have mentioned the complainant was aged 16 years 2 months. She was therefore a child. Although there are some aspects of her life that were characteristic of an older person, she could not be expected to be as mature as an adult. And in any event it would be wrong to assume that all complainants of sexual offences will react in a particular way. The amendments to s 632 Criminal Code in 1997 recognised that stereotypical thinking about children and victims of sexual offences was wrong.^[5] And in any event the applicant was 29 years of age, so there was a significant disparity.

27. [27]
    The decision by a complainant to report an alleged sexual offence to Police will be influenced by a variety of factors. The present case illustrates that. It is difficult to adjudicate upon the sufficiency of the complainant’s reasons for not making an earlier complaint to Police. The delay in finalising the Police investigation is satisfactorily explained.^[6] The determination of the present application for a permanent stay of the indictment depends not on the adequacy of the complainant’s reasons for not making an earlier complaint, but rather on whether the delay will cause any trial of the applicant to be unfair.

28. [28]
    The power to order a permanent stay of criminal proceedings will be exercised only in exceptional circumstances: Jago v District Court (NSW).^[7] In that case Mason CJ said:

“To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the route 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’: Barton, per Wilson J. Where delay is the sole ground of complaint, an accused seeking a permanent stay must be ‘able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute’: Clarkson.”^[8]

29. [29]
    I do not consider the inability of the parties to identify and locate the taxi driver with whom the complainant first had contact after the alleged offence to be of any significance. The applicant’s written submissions state:

“The first person (the complainant) had interaction with after the alleged offences was a taxi driver. At this stage, she says she had been ‘physically hurt’ and was ‘extremely distressed’. It is not now possible to attempt to identify this person to verify this aspect of her account. Even if that was possible, it seems unlikely that he/she would have any useful memory of that fare; whilst, if approached within a day or two or even a week of the alleged incident, the prospects of recalling a fare where a young woman who was in the condition alleged by the complainant, would have been much higher.”^[9]

30. [30]
    This submission seems to recognise that only a very prompt complaint might have resulted in the discovery of evidence that could have shed light on the complainant’s condition shortly after the alleged offence. However this is entirely speculative. The complainant does not allege that she suffered physical injuries that are likely to have been observed by a taxi driver.

31. [31]
    The unavailability of a potential witness would not ordinarily justify the permanent stay of criminal proceedings: R v Smith^[10], R v Wrigley^[11], R v Cossor.^[12]

32. [32]
    The High Court observed in R v Edwards^[13] that:

“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.”^[14]

33. [33]
    The witnesses who are able to give evidence of the surrounding circumstances on the night of the alleged offence are N, C, A and D. It is submitted for the applicant that their memories of critical conversations have faded. For instance, N has “very vague recollections” of this period of her life. She does not seem to have any memory of the night at all.

34. [34]
    The only people present at the time of the alleged offence were the complainant and the applicant. The applicant’s interview with Police on 17 March 2011 contains a remarkable amount of detail. He recalls the complainant’s visit to the apartment. He denies having sexual intercourse with her. Perhaps one reason that the applicant recalls a number of details about the occasion is that according to A, the applicant said to him some days later that he wanted to explain what had happened.^[15]

35. [35]
    In relation to the fading memories of the witnesses it is relevant to note that in Jago v District Court (NSW)^[16] Deane J said:

“… the vagueness and uncertainty of memory and evidence which is likely to result from delay is more likely to be damaging to the prosecution than to the defence case.”^[17]

36. [36]
    The same point was made by Chesterman J (as his Honour then was) in R v Wrigley.^[18] Nevertheless there will be instances where the fading memories of witnesses will be a disadvantage to the defence.

37. [37]
    The evidence of surrounding circumstances may be important but in this case the evidence is not of such critical significance that the faded memories of the witnesses will result in an unfair trial. Moreover, the inability of N to recall the complaint of rape made to her may disadvantage the Crown rather than the applicant.

38. [38]
    The other witnesses, T and the complainant’s father, give evidence of preliminary complaints. They both seem to have a reasonably good recollection of their conversations with the complainant.

39. [39]
    In relation to the lack of opportunity to secure forensic evidence, the circumstances of the alleged offence are such that only a fairly prompt complaint would have yielded anything of significance.

40. [40]
    The unit where the alleged offence occurred has had substantial renovations carried out.^[19] However I do not consider that to be a matter of great significance.

41. [41]
    It was contended that the complainant was vague about the nature and extent of psychological counselling that she has undergone.^[20] Although that may be so, Detective Senior Constable Stehr has obtained the details of medical practitioners and counsellors consulted by the complainant.^[21] Some of the medical records have been obtained and steps are being undertaken to obtain the other records. In the circumstances, this is not a matter of great significance.

42. [42]
    There is no basis for concluding that the prosecution is influenced by any improper purpose.

43. [43]
    I do not accept the applicant’s contentions that any trial would necessarily be unfair so that any conviction would bring the administration of justice into disrepute. Nor do I accept that there are no directions that could be given to the jury that remedy the unfairness caused by delay. The decisions of the High Court in Longman v The Queen,^[22] Crampton v The Queen,^[23] and Doggett v The Queen^[24] establish that the jury must be given a specific warning about the danger of convicting based on the complainant’s evidence in view of the delay between the alleged offence and the complaint. In my view such directions will provide a satisfactory safeguard to protect the interests of the applicant in securing a fair trial.

44. [44]
    The application for a permanent stay of the indictment should be dismissed.