R v DCL[2018] QDCPR 11

DISTRICT COURT OF QUEENSLAND

Application

1. [1]
   DCL is charged on indictment before the District Court at Ipswich with five offences of indecent treatment of a child. All counts are in identical terms as follows:

That on a date unknown between the first day of January, 1979 and the sixteenth day of March, 1980 at Ipswich or elsewhere in the State of Queensland, DCL unlawfully and indecently dealt with MHL a child under 16 years. 

2. [2]
   DCL applies pursuant to s 590AA of the Code for pre-trial ruling that proceedings upon the indictment be permanently stayed.

3. [3]
   I have reached the conclusion that an order permanently staying proceedings on the indictment should be made. These are my reasons for so finding.

Material

4. [4]
   The applicant’s material included:

1. Application;
2. Timeline of events;
3. Affidavit of Michael Frederick Bosscher sworn 30 June 2017;
4. Affidavit of Michael Frederick Bosscher sworn 13 September 2017;
5. Affidavit of Naadira Omarjee sworn 21 July 2017;
6. Affidavit of Naadira Omarjee sworn 7 December 2017;
7. Affidavit of Naadira Omarjee sworn 8 December 2017;
8. Applicant’s outline of submissions (8/12/2017);
9. Applicants further outline of submissions (12/12/2017).

5. [5]
   The respondent’s material included:

1. Affidavit of Joanna Reeve sworn 11 August 2017.
2. Respondent’s outline of submissions (11/8/2017).

Prosecution case

6. [6]
   The complainant is MHL; her date of birth is 16 March 1964. Despite the time period described in the charges, it is alleged the offences occurred on consecutive weekends of 29 September and 6 October 1979. MHL was then aged 15 years; she turned 16 years of age on 16 March 1980. The applicant was born on 23 March 1939; he was aged 40 at the time of the alleged offences.

7. [7]
   MHL alleges the applicant engaged in sexual conduct with her which commenced around 29 September 1979 and continued until she broke off their relationship in the week of 12 December 1981, when she was aged 17.

8. [8]
   MHL says she came to know the applicant through her playing hockey with the applicant’s daughters, NK and LK. The applicant was the coach of their hockey team. MHL says she regularly went to the applicant’s residence on Saturdays prior to games, and during the week before training. MHL says she would travel by train from her home at Walloon to Ipswich and then walk to the applicant’s house. MHL says when the hockey season ended around early September, she played vigoro in the summer months. She still visited the applicant’s house after vigoro games.^[1]

9. [9]
   The charges reflect some of the events MHL alleges occurred on the first two occasions that sexual conduct took place. Counts 1-4 are said to have taken place on the very first occasion of sexual interaction.^[2] MHL recounts that this was “on or about the 29^th of September 1979” after she had played a game of vigoro and returned to the applicant’s home. She says the applicant then drove her home in a beige coloured Datsun sedan which he had only recently purchased. She says that the applicant drove past her turn off and stopped in a remote spot and forced himself upon her whilst she was in the front passenger seat of the car. She says he kissed her on the mouth using his tongue (count 1), he then fondled her breasts under her shirt but outside of her bra (count 2), he placed her hand on his erect penis on the outside of his clothing (count 3), and he touched her genital area with his hand, under her skirt but on the outside of her underwear (count 4).^[3] MHL then describes the applicant removed his own clothing except his t-shirt, had her assist with removal of her clothing, reclined the seat she was on, got on top of her and achieved penetration of her vagina with his penis, then continued intercourse until he ejaculated.^[4] On the account of MHL, none of this interaction was with her consent or encouragement and was entirely unexpected. She says this was the first time she experienced sexual intercourse, it was painful, and she bled as a result.^[5] She says the applicant told her not to tell anyone what had happened and that she should have a bath. She says she did not tell anyone and felt “intimidated and betrayed” and cried herself to sleep.^[6]

10. [10]
    MHL says the next sexual conduct occurred on the following Saturday. She says she caught a train to go to the applicant’s residence as she usually did prior to vigoro. She says the applicant, to her surprise, met her at the train station and drove her to a clearing along Pine Mountain Road at Blacksoil. She says he produced a sheet, took her into the “scrub” where he lay the sheet, and then kissed and fondled her (count 5).^[7] She says they then removed their clothes, the applicant asked her to lay down, he got on top of her and he penetrated her with his penis. She says that afterwards, they went to the applicant’s place where his family were.^[8]

11. [11]
    MHL then describes the applicant having sex with her nearly every weekend until the 15^th December that year. She says the sexual contact resumed from about 19^th January; this coinciding with the break in the vigoro season. She describes that the applicant would continue to meet her at the train station and take her somewhere to have sex, and on occasions had sex with her in his backyard when no one else was home. MHL says there would have been 20 occasions when sexual intercourse took place before her 16^th birthday. She also says there would have been three or four occasions the applicant had her perform oral sex upon him.^[9]

12. [12]
    MHL says the routine of meeting the applicant and having sex continued after she turned 16, for the remainder of 1980. She says at the end of that year the applicant’s wife and daughters moved away and she then engaged in sexual intercourse with the applicant in his bedroom. She says, after she turned 16, the applicant convinced her to allow him to take a photograph of her naked.^[10] She says she broke off the relationship in the week of 12 December 1981 after confiding in a friend that she was having sex with someone who was 40 years of age. She says the friend convinced her she should be with someone her own age and that she should end the relationship. She says the applicant claimed he loved her and threatened to send the naked photograph to her mother if she did not go back to him. She says he in fact carried out that threat, but she did not resume seeing him.^[11]

13. [13]
    MHL says that, when she was still aged 15 years, she told SJ, a friend from vigoro, that she was having sex with someone but did not name or otherwise identify the applicant. MHL says that SJ told her it was against the law because of her age and suggested informing police. MHL says her mother then became aware of the allegations.  MHL says she told the applicant who instructed her to retract her claim and explain she had made it all up. She says she did so.^[12] SJ provided a statement to police in which she says that on an occasion when MHL was under 17 years, MHL told her “DCL is molesting and beating me”. SJ says that she later asked MHL whether that was true, and MHL denied it. SJ says that later still, MHL said it was true.^[13]

14. [14]
    MHL also claims that on an occasion when she was in grade 12, one of the applicant’s daughters witnessed her having sex with the applicant in his bedroom.  MHL says this was after the applicant’s wife and daughters had moved away, but when the daughter was still residing with her father and attending college.^[14] MHL also says that after she had turned 16, her mother intercepted a letter sent to her by the applicant which contained explicit sexual details. MHL says her mother called police and she was questioned by police about who the author might be but denied knowing who was responsible.^[15]

15. [15]
    As identified above, MHL describes the first occasion of sexual conduct as occurring during the course of the vigoro season which commenced in September, shortly after the end of the hockey season.^[16] MHL claims the events occurred in 1979, that her hockey team coached by the applicant had won the grand final that year, and she had a photo of the winning team with the applicant.^[17] The prosecution have disclosed a photograph, seemingly from a newspaper article, in which MHL, the applicant’s daughters, and the applicant appear with the rest of the team. The caption attached to the photo describes the team as being premiers in 1979.^[18]

16. [16]
    As is plain from the above, the complainant alleges that on multiple occasions the applicant had sexual intercourse with her prior to her sixteenth birthday. The prosecution acknowledges that charges of unlawful carnal knowledge cannot be brought in respect of those allegations because, under section 215(2) of the Code as it then was, it was necessary to commence proceedings within 6 months of the alleged offending. Since no complaint was made until 1995, charges of unlawful carnal knowledge are statute barred.^[19] The five allegations of indecent treatment of the complainant charged in the indictment are based upon the ancillary acts which are alleged to have accompanied the first two occasions of sexual intercourse. The prosecution acknowledges the account of MHL does not sufficiently particularise any other acts which might also be charged.^[20] The prosecution nevertheless has indicated the intention to lead evidence of the uncharged acts of sexual intercourse and other conduct described by the complainant, in order to show the nature of the relationship and/or context in which the charged offences occurred.^[21] The applicant does not concede the evidence is admissible for that purpose or at all, but does not require that issue to be decided upon this application.^[22]

17. [17]
    The prosecution case, as particularised above, is based upon the description of alleged events as contained in MHL’s initial police statement dated 25 October 1995. No further or new information or evidence is relied upon.^[23]

Relevant facts

18. [18]
    The material relied upon by the parties establishes circumstances relevant to the application. These circumstances, which were not disputed, include the following.

1. MHL was raised by her “parents”, actually her paternal aunt and uncle, who died in August 1985 (mother), and April 1990 (father).^[24]

2. Police officer Crone first commenced investigating the allegations made by the applicant’s daughters against the applicant on 9 October 1995, and first approached the applicant regarding those allegations on 28 February 1996. During this period officer Crone took a number of witness statements.^[25]

3. MHL first complained to police about these allegations on or around 25 October 1995 (as per date on statement) and signed a statement on 7 December 1995. The statement was provided to police officer Crone.^[26]

4. On 4 March 1996 the applicant took part in a formal recorded interview with police officer Crone.^[27] This recording has been lost.^[28]

5. On 7 March 1996, officer Crone charged the applicant with offences allegedly committed upon his daughters NK and LK.^[29] Officer Crone did not charge the applicant with offences relating to MHL because MHL withdrew her complaint.^[30]

6. On 1 July 1996, MHL contacted then Crown Prosecutor Mr Rowntree, advising she wished to renew her complaint. Mr Rowntree, who made a file note of his contact with MHL, referred MHL to police officer Crone. The note includes that MHL told Mr Rowntree that she was originally a further complainant against the applicant but that after discussions with police officer Crone “she withdrew her allegations”.^[31]

7. In July 1996 the applicant was charged by officer Crone with three offences of indecent treatment of MHL; the basis of the charges being the statement of MHL dated 25 October 1995.^[32]

8. Committal proceedings against the applicant in relation to the charges involving all three complainants were conducted on 25 and 26 July 1996. MHL gave evidence and was cross-examined on 25 July 1996. The applicant was committed for trial on 26 July 1996 in respect of MHL’s complaints, as well as those of the applicant’s daughters.^[33] The prosecution was represented at these proceedings by an employee of the Office of the Director of Public Prosecutions (ODPP); the applicant was represented by Mr Bosscher, Solicitor, of Ryan and Bosscher Lawyers.^[34]

9. On 19 August 1996, the prosecution presented an indictment in the District Court charging the applicant with offences against his daughters. Count 6 on that indictment alleged an offence against LK committed between 30 August 1977 and 1 January 1978. Count 7 alleged an offence against LK committed between 1 January 1980 and 31 December 1981.^[35]

10. No indictment was presented in respect of MHL’s complaints; this was a deliberate decision taken by the prosecution.^[36]

11. On 2 June 1997, a permanent stay was ordered by a Judge of the District Court at Brisbane in respect of counts 1-5 on the indictment. On 3 June 1997, the applicant was found not guilty by a jury of counts 6 & 7 on the indictment.^[37]

12. On 8 July 2003, LK wrote a letter to the ODPP, seeking to have charges against the applicant revived. This letter made reference to the complaint by MHL in which “the time limits had exceeded so it didn’t proceed to trial”. The letter complained that LK, NK and MHL were “seriously let down” in 1996 and described the result as “a huge injustice”.^[38]

13. In 2009, the solicitors firm Ryan and Bosscher Lawyers ceased to exist. The client records previously held by that firm are no longer in existence.^[39]

14. On 22 April 2014, lawyers acting on behalf of MHL wrote to ODPP, seeking to have the charges reflecting her complaints revived.^[40]

15. On 5 May 2014, the ODPP wrote to MHL advising that if she wished to revive her complaint, she could attend a police station and do so. This correspondence proffered an explanation why the charges were discontinued in 1996; namely, that the law as it then stood did not permit charging of ancillary offences where the unlawful carnal knowledge charge was statute barred.^[41]

16. On 15 April 2015, Police officer Lynch attended the applicant’s place of residence to charge him with offences in respect of MHL. When informed of this reason, the applicant said the matter involving MHL was finalised. The applicant also said he only had sex with MHL after she had turned 16 years of age.^[42]

17. On 23 April 2015, the applicant was again charged with indecent treatment offences against MHL.^[43]

18. On 16 December 2015, the applicant was again committed for trial in respect of MHL’s complaints.^[44]

19. On 27 April 2016, the present indictment was presented in the District Court at Ipswich.^[45]

20. Mr Bosscher, owing to the passage of time, now has little memory of the circumstances of the initial charges against the applicant, beyond that they did not proceed past committal hearing.^[46]

21. Solicitor Ms Omarjee had the carriage of the applicant’s case. In preparing to defend the charges, Ms Omarjee took instructions from the applicant concerning the beige coloured Datsun, referred to by MHL in her allegations. Ms Omarjee says the applicant told her he cannot now recall where precisely he purchased that vehicle, except that it was in Ipswich. The applicant instructed he did retain records of the purchase for some years afterwards but no longer had any records. The applicant also instructed he may have still had those records in 1996 when first charged, but he was unsure as to that fact.^[47]

22. Ms Omarjee conducted enquiries with the Department of Transport and Main Roads but was told that no records of vehicle registrations prior to 1985 were still held.^[48] Investigations by police officer Lynch made with Qld Transport Department revealed “there are no records of [the applicant] owning a Datsun”.^[49]

23. Ms Omarjee also made enquiries with the Ipswich Hockey Association to attempt to obtain records of premiership winning teams in the ladies’ competitions occurring around the late 1970s. Ms Omarjee was provided with a record showing MHL’s club won hockey premierships in each of years 1978, 1979, 1980, and 1981.^[50]

24. At issue at a trial will be whether the prosecution have proved beyond reasonable doubt that the sexual relationship between MHL and the applicant commenced before her 16^th birthday; i.e. 16 March 1980.^[51]

Reason for delay

19. [19]
    As is obvious, the delay between the commission of the alleged offences and the present is in excess of 38 years. The applicant submits he is not responsible for the delay. The applicant submits the delay from 1979, until the revival of the complaint in 1996, was due to the complainant. It is submitted there was opportunity for complaint to have been made and/or pursued at any time earlier than it was. It is submitted the complainant was not of such a young age as precluded her making a complaint, and her delay seems to have been a deliberate choice. The applicant submits the delay from 1996 until the present is due solely to the actions of the prosecuting authority. It is submitted this is so since a deliberate decision was made not to indict the applicant in 1996, and the present charges are based entirely upon the same material as was then available. In addition, the applicant points out that despite the 2003 letter from LK, complaining of injustice in not prosecuting these very same charges, the prosecution did not take any step to reconsider that decision. The applicant submits there is no explanation for the delay by the prosecution.

20. [20]
    The respondent acknowledges the length of the delay and accepts MHL was aged 31 when she first provided a statement to police in 1995. The respondent argues that the decision not to proceed in 1996 was a rational one which adequately explains the delay after that time. The respondent submits the consequences of delay can be addressed by directions to the jury.

Whether 1996 decision not to proceed explained

21. [21]
    As identified above, the correspondence from the ODPP to MHL’s lawyers of 5/5/2014, proffered an explanation to the effect that, in 1996 when the charges were discontinued, the law did not permit the charging of ancillary conduct as separate counts of indecent dealing, where the time limit for charging unlawful carnal knowledge had expired. The respondent concedes the original prosecution file created in 1996, does not contain any record as to why the charges were not proceeded with.^[52] The applicant contends the explanation proffered in the correspondence is not legally correct.^[53] The respondent’s submissions in effect accept that to be so.^[54] The correctness of this concession seems to me confirmed by the authorities referred to in the parties’ submissions and in argument. In addition, the applicant was then charged with offences of indecent treatment of a child under 16 years. This could only have been on the basis of the ancillary conduct described as accompanying the first two acts of sexual intercourse.^[55]

22. [22]
    The respondent instead argues that the logical explanation for discontinuance was that the complainant gave full evidence at the 1996 committal proceedings, so that her witness statement was not evidence in those proceedings. That much is undoubtedly correct. The respondent further argues that MHL did not give any oral evidence of ancillary conduct, separate from acts of carnal knowledge, sufficient to justify separate charges of indecent dealing. The applicant submits to the contrary.

23. [23]
    As regards the first occasion of sexual conduct, in her evidence in the 1996 committal proceedings, MHL said the applicant “lent over and kissed me and just fondled my breasts”.^[56] MHL went on to describe the applicant “pulled my bra up and was just fondling me”^[57] and had her help remove her clothes so that she ended up completely naked.^[58] She said the applicant also used his hand under her buttocks to raise her pelvis to assist his achieving penetration.^[59] In relation to the second occasion of sexual conduct, MHL described that the applicant undressed her prior to again achieving penetration.^[60]

24. [24]
    The acts now relied upon as ancillary conduct and the basis of counts 1 and 2 on the indictment were then described by MHL; namely kissing and fondling of the breasts. Arguably, the evidence of MHL also described other ancillary conduct including undressing her and lifting her buttocks to achieve penetration. MHL’s evidence of the second occasion included the applicant undressing her, which might also have been charged as ancillary conduct.

25. [25]
    No submissions were made to the Magistrate by either party that the evidence did not disclose offences of indecent dealing with MHL. The Magistrate committed the applicant for trial, presumably satisfied the evidence disclosed offences. I am satisfied the evidence given by MHL at the committal proceedings in 1996 was sufficient basis for charges of indecent dealing. In addition, it remained open to the prosecution to indict the applicant on the basis of the account disclosed in the statement of MHL, just as is now done. MHL did not in her evidence at committal retract her version, she at all times maintained the applicant had sexual intercourse with her and described surrounding events. I do not accept the submissions now made as an explanation for the decision not to indict the applicant in 1996.

26. [26]
    The letter of LK in 2003 it is argued, was an opportunity for the prosecution to have reconsidered the decision not to proceed against the applicant. That correspondence expressly referred to the allegations of MHL not being proceeded with and referred to all of the circumstances as an injustice. The material does not permit me to conclude what action was taken in response to that letter, except that the current charges were not then proceeded with.

27. [27]
    In the circumstances, I conclude that no satisfactory explanation has been provided as to why the deliberate decision was made in 1996 not to proceed against the applicant in respect of MHL’s complaint. In consequence, I conclude the delay from that time was solely due to the actions of the prosecution.

Consequences of delay

28. [28]
    The applicant submits there has been loss of relevant evidence or opportunity to obtain same, as a result of the long delay in prosecuting these allegations.

29. [29]
    The applicant points to the fact MHL’s mother is deceased. The applicant submits the mother would have been able to confirm or refute MHL’s claim of her disclosure to SJ whilst MHL was still aged under 16 (SJ says only that MHL was then aged under 17). In addition, MHL’s mother would have been able to give evidence as to why police were called in 1980, and whether the applicant revealed the relationship in 1982. The respondent concedes the mother is unavailable but points out that she died well before the first complaint was made in 1995. Whilst that is true, I have no doubt, if she were alive, she would have been able to provide relevant evidence. It is likely her account would have proved critical in assessment of MHL’s reliability.

30. [30]
    The applicant also complains that no police records are available which shed light on any police investigation or action taken in 1980. The respondent acknowledges no police records are available but submits they would be of no moment because MHL turned 16 in 1980, and the applicant could not be guilty of any offence after that time. Whilst it is clear police took no action against the applicant in 1980, it cannot be assumed they did not then discover information of relevance. Presumably, police spoke to MHL and her mother. The issues of critical importance then were whether anyone engaged in sexual activity with MHL, and if so, when that occurred. The question of time remains the principal issue now. The lack of any police action may have been because investigation discounted anything occurring prior to MHL turning 16. Presumably, if evidence to the contrary existed, some action would have resulted. I conclude the absence of any police record from 1980 is a significant disadvantage to the applicant.

31. [31]
    The applicant also complains that no records are now available concerning the date of purchase or registration of the beige Datsun described by MHL as having been purchased shortly before the first incident. The applicant submits this has resulted in real prejudice to the applicant since any record showing the vehicle was purchased or registered after 29 September 1979 (the occasion of counts 1-4), would prove fatal to the prosecution case. The applicant submits that the delay has affected the applicant’s memory as to this detail and resulted in the loss of crucial documentary evidence that he previously held. The respondent’s written submissions were to the effect that the timing of the purchase and/or registration of the car is a collateral issue only and not a fact that might otherwise be proved.^[61] However, in oral submissions, the respondent acknowledged that, in light of the applicant identifying the real issue as being when the sexual relationship commenced, the date of purchase of the car is a significant issue and provable if the records were available. I regard the absence of any records or the opportunity to obtain them as a significant disadvantage to the applicant.

32. [32]
    The applicant also complains about the loss of the recording of the applicant’s 1996 police interview. The respondent acknowledges the recording is lost but submits it is irrelevant because it related solely to the complaints of the applicant’s daughters.^[62] That submission relies upon the witness statement of police officer Crone. That statement deals only with the investigative steps taken with respect to the applicant’s daughters. So much is obvious from the statement itself. Officer Crone explained in evidence at the committal proceedings in 1996, that she had first contacted MHL after taking a statement from LK and MHL then made a complaint which she later withdrew. Officer Crone said MHL later renewed that complaint and in consequence, further charges were laid against the applicant. Officer Crone said the record of the steps taken in her investigation was included in her statement but acknowledged she had not made any further record, despite the further charges being laid.^[63] Officer Crone’s statement refers to her contacting the applicant on 28 February 1996, informing him of the complaints of LK and NK, and asking if he wished to be interviewed. The statement says the applicant sought legal advice and on 7 March 1996 attended the Dutton Park Police Station where he took part in an interview which was audio and video recorded. The submissions of the respondent assume that no questions were asked of the applicant in the interview concerning MHL’s complaints and that otherwise nothing said was relevant to MHL’s allegations. Nothing in the evidence of officer Crone or her statement expressly says that is correct. As set out above, counts 6 and 7 on the indictment presented against the applicant in 1996, involved the time period during which MHL claims the present offences occurred. The present allegations are inextricably associated with the applicant’s household and its members. On the state of the material, I am unable to conclude that the missing interview had no relevance to the present charges. It seems to me likely that the interview would have at least traversed the timing of relevant events and may well have included reference to other relevant topics (e.g. vehicles owned by the applicant). Even assuming no direct questioning concerning MHL’s allegations occurred, I cannot dismiss the interview as simply irrelevant. I conclude this is another feature which disadvantages the applicant.

33. [33]
    The applicant’s material also shows that the solicitor’s file, created at the time the applicant was first charged, no longer exists. The solicitor who then acted for the applicant, now has little memory of the case. In addition, the respondent’s historical file does not record the reason for discontinuance in 1996. It is unknown what material was gathered by either party, whether that was material to the real issue, and whether that may have been pivotal to the decision to discontinue the charges. The loss of these records also disadvantages the applicant.

34. [34]
    In addition, the applicant complains that the lengthy delay inevitably effects the memories of persons who might otherwise have been in a position to provide relevant detail; e.g. friends, family or teammates. It is submitted this applicant is similarly affected, since he cannot be expected to recall where he was on the afternoon/evening of 29 September 1979 or the following weekend. It is submitted his instructions concerning the car further demonstrate the difficulty. The applicant submits the complainant will be similarly affected and therefore the opportunity to test her account by reference to other circumstances will be constrained; while at the same time the prosecution will likely submit the reliability of her account is accentuated by reference to peripheral detail such as the newly purchased car. The respondent, in effect, concedes the delay to have this effect but submits this disadvantage is adequately addressed by a Longman direction to the jury.

35. [35]
    If the only prejudice associated with the long delay in this case were the fading memories of relevant persons, the unfairness occasioned to the applicant may well be adequately reduced by way of a Longman direction, designed to alert the jury to the “accumulated experience of courts” that “after the passage of many years, the evidence of the complainant cannot be adequately tested or met.”^[64] However, in light of the loss of other material as described above, and the other circumstances of this case, the effect of delay upon memories remains but one feature to be considered.

Other Submissions

36. [36]
    The applicant submits that in light of the consequences of the long delay, as referred to above, he suffers real prejudice. The applicant submits this unfairness cannot be reduced by directions to the jury. The applicant contends that a Longman direction, whilst highlighting the inability of the applicant to investigate particular aspects of the allegations or to marshal evidence to rebut some claim, is of little comfort where what is lost is an opportunity to pursue those avenues. The resultant contest, it is submitted, remains one of credit between the complainant and the applicant and the direction does little to balance against what is lost.

37. [37]
    The applicant also submits the public interest in the prosecution of the specific counts charged in the indictment, amounting to two occasions of momentary touching, is not as strong as might occur in respect of more serious allegations. It is submitted it is unlikely, if convicted, the applicant would be sentenced to actual imprisonment.

38. [38]
    The applicant submits that bringing of these charges, more than twenty years after a deliberate decision not to pursue them, is oppressive and conduct which is likely to erode confidence in the administration of justice. It is submitted here, where there is no new evidence, the applicant suffers real prejudice, the charges are comparatively less serious, and the inordinate delay is not the fault of the applicant, the threshold is crossed where a permanent stay should be ordered. The applicant relies upon the combination of these factors as justifying the making of an order permanently staying the proceedings.

39. [39]
    The respondent submits the public interest in having allegations of child sex offences determined at a trial requires these charges should proceed. The respondent argues that the 1996 decision not to proceed was not legally a bar to the applicant being charged in future. The respondent submits that the actions of the prosecuting authority have been proper and regular. The respondent submits that any unfairness to the applicant at trial can be met by an appropriate Longman style direction to the jury. The respondent submits this case presents no exceptional or extreme circumstances warranting an order permanently staying proceedings. The respondent submits the application should be refused.

Relevant principles

40. [40]
    It is well settled that a court exercising criminal jurisdiction has the power to order a permanent stay of proceedings in order to protect against an abuse of process. In Jago v District Court (NSW)^[65], Mason CJ explained the justification for the power:

In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and the processes preceding them are conducted fairly and, secondly, that, so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In this sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed.^[66]

Mason CJ summarised when the power might be exercised as follows:

The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused. In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare.

To justify a permanent stay of criminal proceedings, 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". 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" (Citations removed.)^[67]

41. [41]
    In Jago, Deane J also concluded the power should be sparingly exercised. His Honour said:

An order that proceedings be permanently stayed will only be justified in the exceptional cases which I have indicated, namely, where it appears that the effect of the unreasonable delay is, in all the circumstances, that any subsequent trial will necessarily be an unfair one or that the continuation of the proceedings would be so unfairly oppressive that it would constitute an abuse of process.^[68]

42. [42]
    Although delay resulting in unfairness was the sole basis for seeking a permanent stay of proceedings in Jago, subsequent decisions of the High Court have acknowledged that other circumstances might justify such an order. In Williams v Spautz^[69], the court concluded a permanent stay was justified where the prosecution was brought for an improper purpose. In their joint judgement, 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 C.J. 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.)^[70]

43. [43]
    In Rogers v The Queen^[71], Mason CJ said:

The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not that party's genuine purpose to obtain the relief sought in the second proceedings. The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories. Likewise, it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process.

Williams v. Spautz is a case in point. Although the majority judgment concluded that there was, in that case, an abuse of process consisting in the initiation of proceedings for an ulterior and improper purpose, the majority recognized that the concept extends beyond use of court processes for ulterior purposes to the use of such processes so as to cause vexation or oppression. (Citations removed.)^[72]

44. [44]
    Mason CJ went on^[73] to cite with approval from Walton v Gardiner^[74]. In that case the majority judgement of Mason CJ, Deane and Dawson JJ included the following:

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. (Citations removed.)^[75]

45. [45]
    In light of these observations, Mason CJ concluded in Rogers:

These statements indicate that there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute. This led the majority in Walton v. Gardiner to state that the question whether criminal proceedings should be permanently stayed was to be determined by a weighing process involving a balancing of a variety of considerations. Those considerations, which reflect the two aspects of abuse of process outlined above, include:

"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". (Citations removed.)^[76]

46. [46]
    In Rogers, the prosecution sought to lead evidence of statements made by the accused which had been excluded by a ruling in earlier proceedings. Mason CJ, in finding that a permanent stay was appropriate, described that course as:

… calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue. These considerations necessarily prevail over any competing public interest in the securing of convictions against the appellant.^[77]

47. [47]
    Also in Rogers, Deane and Gaudron JJ likewise concluded the proceedings should be stayed as an abuse of process because it invited “"…the scandal of conflicting decisions". And it jeopardises public confidence in the administration of justice…”.^[78]

48. [48]
    In Walton v Gardiner, the majority stated the relevant considerations as follows:

As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations 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.^[79] (Citations removed.)

49. [49]
    In Moti v The Queen^[80], the majority (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), quoted with approval the passage from Williams v Spautz set out above at [42]. The majority went on to explain that passage 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 abuse of process extends to a use of the courts' processes in a way that is inconsistent with those fundamental requirements.^[81]

50. [50]
    From these various statements of principle, I draw the following conclusions.

1. In dealing with a criminal prosecution, the court has power to order a permanent stay of proceedings which amount to an abuse of the processes of the court.

2. The policy considerations which underpin this power are:

1. that the public interest in the administration of justice requires that the court protect its integrity by ensuring its processes are used fairly by State and citizen alike;

2. thus avoiding erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice.

3. The power to order a permanent stay should only be exercised in extreme or exceptional circumstances. The court should first look to whether appropriate steps such as specific direction to the jury, or exclusion of evidence, might eliminate or reduce unfairness and permit a fair trial to take place.

4. The power should be exercised where the processes of the court are converted into instruments of injustice, vexation, oppression or unfairness, and thereby bring the administration of justice into disrepute.

5. The category of cases where a permanent stay will be justified are not closed. However, examples may include: delay, although delay alone will rarely be sufficient basis (Jago, Batistatos v Roads and Traffic Authority (NSW)^[82]), bringing proceedings for improper purpose or in an inappropriate forum, where proceedings are foredoomed to fail (Walton v Gardiner), seeking to relitigate a prior final determination of a court (Rogers, The Queen v Carroll^[83]), unlawful conduct on the part of law enforcement authorities or government (Ridgeway v The Queen^[84], Moti), irremediable prejudice resulting from adverse pre-trial publicity (Glennon v The Queen^[85], Dupas v The Queen^[86]).

6. Determining whether in any given case a permanent stay should be ordered requires weighing of competing considerations 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.

51. [51]
    The written submissions and argument referenced a number of cases which provide different examples of circumstances where applications for a permanent stay of proceedings were made.

52. [52]
    Specific reference was made to the case of R v Noyes^[87]. The applicant relied upon a passage in the reasons of Holmes J as follows:

There was no suggestion that the Crown had deliberately or negligently delayed the prosecution, so as to raise the question of abuse of process, as opposed to unfairness.^[88]

The applicant submitted the present case, in contrast with Noyes, involved a longer time frame but also deliberate conduct of the prosecution resulting in delay and unfairness.

53. [53]
    The majority judgement in Williams v Spautz recognised that whether unfairness is required to be shown before a stay will be granted will depend upon the circumstances of the case. In that case, where the justification for the stay was that the proceedings were brought for improper purpose, the majority said it was not necessary to show that the trial will be unfair in order for the application to succeed.^[89]

Consideration

54. [54]
    The circumstances show that the complainant MHL first complained to police in 1995 when she was approached by officer Crone, who was investigating the complaint by the applicant’s daughter LK. MHL then withdrew her complaint but reinstated it after contacting the ODPP on 1 July 1996. The applicant was then charged with offences of indecent treatment of MHL and faced a committal hearing in relation to those charges and the charges relating to his daughters. The ODPP appeared to prosecute at that hearing.

55. [55]
    The charges were then properly brought and were based upon the ancillary conduct described by MHL as occurring at the time of the acts of sexual intercourse. The prosecution (either police or ODPP) could have, but did not, charge the applicant with rape for the conduct described as occurring on the first two occasions. I presume that is because the effect of MHL’s account is that ultimately, sexual contact was regular and consensual. That is not, however, her description of the first episode. A charge of rape would not have been prevented by any time limit. I infer a deliberate decision not to charge rape was taken.

56. [56]
    Although the applicant was committed for trial in respect of the charges of indecent treatment of MHL, the ODPP made a decision not to present an indictment charging any offence relating to her. Instead, the prosecution indicted the applicant with charges relating to his daughters’ allegations. Those charges were finally determined before the District Court in 1997, favourably for the applicant. The present indictment then is an attempt to litigate anew, charges which were deliberately withdrawn in 1996, and upon the same evidence as then existed.

57. [57]
    The prosecution file from 1996 does not explain why the charges were withdrawn and I do not accept the explanations offered by the respondent for that course. It remains a matter of speculation as to whether any critical information was uncovered which was relevant to the central issue, namely when the sexual relationship commenced, and which led to the charges being withdrawn. If there was good reason for the discontinuance at that time, that explanation has now been lost.

58. [58]
    None of the delay prior to 1995 can be attributed to the prosecuting authorities. That delay at least resulted in the loss of potentially telling evidence from MHL’s mother. The delay after 1996 must be attributed solely to the ODPP. That delay has resulted in genuine unfairness to the applicant. He is now prevented from exploring lines of inquiry which could have proved critical to assessment of the reliability of the complainant’s account; e.g. vehicle purchase and registration records, police records as to why no action was taken in 1980. In addition, the applicant’s memory has dimmed with time. Whatever efforts were made, and information gathered, in preparation to defend these charges in 1996, has been lost. The ability to test the account of MHL is constrained.

59. [59]
    There is a clear public interest in serious criminal charges being determined at a trial and where appropriate, a guilty person being held to account. In this case, if the only resulting unfairness to the applicant by reason of the delay was the fading memories of witnesses, a Longman direction may be adequate to enable a fair trial to take place. However, here that direction will be unlikely to balance what will develop into a contest of credit as to when the sexual conduct commenced. Bringing to the jury’s attention the specific ways in which the delay has limited the applicant’s ability to pursue lines of inquiry which might have seriously undermined the credit of the complainant, will do little to affect the assessment of her by the jury. I have serious reservation as to whether any such direction could make the applicant’s trial fair.

60. [60]
    But the weighing of relevant factors is not confined to questions of unfairness and the public interest in seeing the guilty convicted. Of real significance in this case is the need to maintain public confidence in the administration of justice. The conduct of the prosecution here is in effect to renew prosecution of a case they abandoned more than twenty years ago. That is clearly oppressive to the applicant and is conduct which surely undermines public confidence in the administration of justice. The applicant was entitled to assume, as he evidently did, that these allegations had been put to rest in 1996. I do not perceive that public sentiment would dictate otherwise, especially in the absence of some reasonable explanation.

61. [61]
    The cases of Rogers and Carroll demonstrate similar conduct on the part of the prosecuting authorities. In Rogers the prosecution attempted to rely upon admissions made in an interview which had been excluded in earlier proceedings due to involuntariness. Mason CJ regarded that conduct as “vexatious, oppressive and unfair to the appellant”^[90] and “calculated to erode public confidence in the administration of justice”.^[91] Deane and Gaudron JJ concluded it “jeopardises public confidence in the administration of justice”.^[92] In Carroll, the prosecution brought a charge of perjury, alleging the defendant lied when he denied in evidence at an earlier trial that he committed the offence with which he was charged and of which he was acquitted. Gleeson CJ and Hayne J held that re-litigation of the same issue  “was an abuse of process”.^[93] Gaudron and Gummow JJ, found that conduct was “vexatious or oppressive in the sense necessary to constitute an abuse of process”.^[94] In both cases an order staying the proceedings was made.

62. [62]
    The distinction to be drawn with those decisions is that here the applicant did not face trial, and the resolution of his case was not made final by any decision of a court. However, the present charges are based upon the very same evidence as was available in 1996, with no rational explanation for the discontinuance.

63. [63]
    The basis of the application for a stay of proceedings in Jago was delay in bringing the matter to trial. In that context, Mason CJ remarked “the community expects trials to be fair and to take place within a reasonable time after a person has been charged”^[95], and 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”.^[96]  Also in Jago, Deane J 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.^[97]

The present circumstances seem to me encapsulated by that example.

64. [64]
    The community expectation is that criminal charges be finally resolved at a trial, as close to the time they are first laid, as can reasonably be arranged. The community would not expect that prosecution of serious charges should simply be deferred for many years. The present course appears unprecedented and entirely arbitrary and, consistent with the assessment by Deane J in Jago, seems to me is unjustifiably oppressive. I am satisfied, on the basis of this unexplained and lengthy delay, that the re-institution of the charges is so oppressive and so undermines public confidence in the administration of justice, as to outweigh the public interest requiring the allegations be determined at a trial. That seems to me basis enough to order a stay of proceedings. In this case there is the added burden of the unfairness that will result at any trial.

65. [65]
    In all of the circumstances, I am satisfied that trying the applicant upon the present indictment amounts to an abuse of the processes of the court. It is therefore appropriate to order that further proceedings on that indictment be permanently stayed.

66. [66]
    The order of the court is: