R v Swadling[2018] QDCPR 35

DISTRICT COURT OF QUEENSLAND

 Introduction

1. [1]
   The defendant applies pursuant to section 590AA of the Criminal Code 1899 (Q) for an order that the proceedings against him be stayed. The ground of the stay is that evidence has been lost thereby causing the defendant irreparable prejudice.

Charges

2. [2]
   The defendant has been charged with four counts of indecent treatment of a child, under 16, under care. The range of dates the subject of each charge is between 31 December 1992 and 1 January 1994. The alleged offences occurred in Brisbane.

Background

3. [3]
   The complainant (BR) was born on 17 December 1981. He is now 36 years old.

4. [4]
   On 1 December 2016 BR attended the Townsville Police Station and made a complaint about the defendant. On the same day BR provided a written statement alleging a number of sexual offences against the defendant^[1]. 

5. [5]
   BR alleges he grew up with his mother (MR).^[2] The defendant came into their lives in 1992. The defendant would babysit him. BR alleges the defendant would take him to a nudist beach near the Donnybrook Caravan Park.^[3] The complainant alleges this started when he was eight or nine years of age.^[4]  BR also alleges he stayed at the defendant’s house at Stafford Heights three or four times.^[5]

6. [6]
   The complainant alleges that in 1993 (when he was 11 years of age) he was attending the Bulimba State School.^[6] He alleges that sometime between March and September 1993 he stayed at the defendant’s house.^[7] 

7. [7]
   BR alleges that on one evening at the defendant’s house, the sexual offending the subject of the indictment occurred. In summary the allegations are:

8. [8]
   In the statement, the complainant alleges that he told his mother and his mother’s boyfriend about the defendant’s behaviour a little time after the defendant returned the complainant to his mother at the end of the weekend.^[12]

9. [9]
   The complainant says his mother called the police immediately and uniformed police attended the residence that evening and arrangements were made for him to go to the Roma Street Police Station the next day.^[13]  The next day he and the mother’s boyfriend were taken to the Roma Street Police Station and he gave a statement but never heard anything more about the matter^[14]. 

10. [10]
    The complainant says that he decided to go to the police (in 2016) after he saw his son come out of a shower^[15].

11. [11]
    In a statement signed on 9 May 2017 the complainant’s mother (Ms R) states that she met the defendant through his sister.^[16] She knew the defendant was a nudist and that the complainant loved camping.^[17] She said that the complainant loved going to the nudist beach with the defendant.^[18] She recalled on one occasion arranging for the children to be babysat by the defendant when the complainant was going to the Bulimba State School.^[19] After this visit the complainant told her the defendant was drunk, had rubbed his penis against him, had sucked the complainant’s penis and the defendant had masturbated on him.^[20]

12. [12]
    Mrs R called the police who then attended their residence.^[21] Mrs R recalls the police who came to their residence informing her that the complainant would have to give video evidence because he was under 14 years old.^[22]  She said that the complainant and her boyfriend (Mr C) went with the police and the complainant gave “video evidence”.^[23]  She said that some time later a police officer, who said he was the head of the Child Abuse Unit in Brisbane, came to her residence.^[24]  This officer passed on information about the court processes and what it would be like and BR decided he did not want to do go through with any prosecution.^[25]

13. [13]
    In a statement provided on 14 March 2017, Mr C confirms that shortly after the baby sitting event, BR told Ms R and Mr C that he had woken up to the defendant sucking his penis.^[26] Mr C states that Ms R called the police, and later that same evening two detectives came to their house to speak to the complainant.^[27]

14. [14]
    Some days after BR had made a complaint about the defendant, two detectives took the complainant and Mr C to the Roma Street Police Station.^[28]  Mr C was the complainant’s support person during an interview conducted by the detectives of the complainant.^[29]

15. [15]
    The defendant was arrested by Detective Tuckey on 16 March 2017. Later that day Detective Tuckey interviewed the defendant^[30]. 

16. [16]
    In the record of interview the defendant explained how he knew the family and the complainant^[31]. The defendant confirmed his first house was at Stafford Heights.^[32] He admitted that the mother trusted him to look after the children.^[33] He admitted the children would stay overnight.^[34] He also admitted taking the complainant to his caravan at the nudist beach at Donnybrook and that he was open about being a nudist^[35]. He admitted that he and the complainant would be naked together.^[36]

17. [17]
    As to the babysitting at Stafford Heights, the defendant said that they had separate bedrooms there^[37]. He also recalled from his first interview with the police that he had a punctured waterbed and he slept on a mattress in another little room^[38] and that he and the complainant slept in the same bed that night.^[39] He then expressed some uncertainty as to this^[40]. He was able to draw a diagram of the house. He also confirmed that BR would not normally sleep with him but he did that night.^[41]

18. [18]
    He said he that he probably picked them up on the Saturday and they were beside the pool and on the Sunday they went to a fish and chip shop at Shorncliffe.^[42] He then said he could not remember what he did.^[43]

19. [19]
    He said that BR was very quiet and acting “strange”^[44] when he took him home. He confirmed recalling the sleeping arrangements and the fish and chip shop^[45]. He had no further recollections of the Saturday^[46]. He would have had a few drinks but could not say how many.^[47] 

20. [20]
    The next thing the defendant recalled after dropping the complainant home was a couple of nights later he was taken into to Roma Street for an interview^[48] by two detectives who “did the same process as this”^[49].  He said the accusations were false.^[50]

21. [21]
    He said he could speak more accurately “back then” of what he did.^[51]

22. [22]
    At the end of the interview, he asked the police what was going to happen and they said “nothing”^[52].  The detectives drove him home and he heard nothing further about the matter.  He said he had no recollection of what he did on Saturday.^[53]

23. [23]
    The defendant denied that allegations made by the complainant.^[54]

24. [24]
    The defendant specifically denied talking to the complainant about masturbation but admitted he told BR that he had to pull back his foreskin in order to wash^[55]. The defendant maintained that he never helped BR clean his foreskin.^[56]

25. [25]
    The defendant specifically denied handling the complainant’s genitals or making the complainant feel his genitals^[57]. He specifically denied performing oral sex on the complainant^[58] and he denied masturbating in front of the complainant^[59] .

Lost evidence

26. [26]
    It is agreed that the Queensland Police Service (QPS) now has no records relevant to the 1993 investigation. The QPS does not have possession of the interview conducted with the complainant in 1993 nor does it have the record of interview with the accused.

27. [27]
    Detective Tuckey was advised this was the position by the Police Information Centre in Brisbane on 16 February 2017.

28. [28]
    Request for disclosure and the service of the subpoena for production of the records has not resulted in any records being disclosed.

Defendant’s submissions

29. [29]
    The defendant submits that an accused person is entitled to have disclosed to him a copy of any statement which is in the possession of the prosecution.^[60]  It is submitted that the inability of the prosecution to disclose the defendant’s 1993 interview will hamper the defendant’s defence.  He is now forced to rely on his memory of events, circumstances and facts from 25 years ago.  It is submitted that there are no directions which a trial judge can give to adequately account for the disadvantageous position which the defendant is placed in.  It is submitted that the defendant is deprived of a fair trial.  Also, the inability of the prosecution to disclose the complainant’s 1993 statement potentially hampers the defendant’s defence as he is denied the opportunity of comparing a recent account with that now given and is therefore deprived of the benefit of any potential inconsistent statement.

30. [30]
    In oral submissions the defendant submitted that he cannot refresh his memory from the 1993 record of interview. As to the suggestion he had a copy of it, he disposed of it many years ago now. It is submitted that in the more recent interview the defendant did raise issues of prejudice. It is conceded the absence of the complainant’s section 93A statement is not the primary point but the defence is denied the opportunity to compare versions.

Crown submissions

31. [31]
    The Crown on the other hand, submits that the documents which have been lost cannot be considered to be in the possession of the prosecution. It is submitted that this case is not so exceptional as to justify the extreme step of granting a stay. Whilst it is unfortunate the 1993 materials have been lost (for the Crown as well as the defendant) there is no unacceptable injustice or unfairness to the defendant. The content of the materials is largely unknown but what is known is the defendant denied the allegations on each occasion. Indeed, the Crown submits that it is not uncommon for a defendant to be charged with a sexual offence many years after the alleged event took place. It is submitted a Longman^[61] direction can be given by the trial judge with strong warnings about the need to scrutinise the complainant’s evidence with great care.  The Crown submits that such a direction would adequately mitigate any potential unfairness to the applicant at trial. It is submitted there is a strong public interest in matters of this nature being heard by a tribunal of fact.

Discussion

32. [32]
    It must be understood that an order for the stay of a prosecution should be seen as exceptional and should only be granted in an extreme case.^[62] 

33. [33]
    In Williams v Spautz^[63] the majority of the High Court stated:

“The court must be satisfied that there are no other means available, such as directions to be given by the trial judge, or bringing about a fair trial.”

34. [34]
    In Barac v DPP; Barac v Sterling^[64] Keane JA said at [24]:

“The kind of prejudice which has been regarded as enlivening the discretion to stay a prosecution is that prejudice which detracts from the prospects of a fair trial. A person accused of crime is put to expense and is made to undergo stress in every prosecution. Sometimes that expense is increased and the stress is exacerbated by inefficiency, and even on occasion incompetence, on the part of those charged with the responsibility of presenting the case for the Crown. It has never been said that these circumstances, alone and without more, justify a stay of proceedings. The strong public interest in the conviction and punishment of serious offences may be displaced by "the paramount public interest" that the administration of criminal justice proceed fairly in a case where a prosecution is pursued for an improper purpose or with no prospects of success; but in a case where a decision not to prosecute has been reversed simply because the prosecution believes that stronger evidence has become available to it, the paramount public interest is not engaged. In such a case, absent some real and incurable adverse effect upon the accused's prospects of a fair trial, a mere change of mind on the part of the prosecution is not, of itself, a sufficient basis for ordering a stay of proceedings. As Wilson J said in Barton v The Queen^[65], in cases where the defect in procedure said to prejudice an accused person involves no more than prosecutorial inefficiency, the defect must be "… of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences".

35. [35]
    In R v Edwards^[66] the Crown successfully appealed the decision of the Tasmanian Supreme Court which had granted a permanent stay of proceedings.  In that matter the two respondents had been charged with reckless operation of an aircraft contrary to the Civil Aviation Act 1988 (Cth).  The respondents were the pilot and first officer of a Qantas Boeing 737-400 aircraft on a flight to and from Launceston in 2001.  The airport was unmanned at the time of the landing and subsequent take-off.  It was the responsibility of the respondents to remotely activate the airport lighting via an established system.  When the aircraft executed its take-off, a number of people observed the airport lighting was not activated.  There was lost evidence in the form of the electronic record of the activation of the lights on a monitor of the aircraft and additionally, the information recorded on the aircraft’s flight data recorder.  The records of both were unavailable.  It was argued that the contents of those records would have involved an independent record of the events giving rise to the charge and the loss of it was said to produce unfairness of the kind which would lead to a stay. 

36. [36]
    In Walton v Gardiner^[67], the High Court confirmed that the relevant test to apply was whether the continuation of the proceedings would involve unacceptable injustice or unfairness or be such as to constitute an abuse of process.  Further the court would only be satisfied that the continuation of the proceedings constituted an abuse of process in an exceptional or extreme case.^[68] 

37. [37]
    The High Court was unanimous in allowing the appeal and quashing the order for the stay. It said:

“It is not necessary to consider whether there may be circumstances in which the loss of admissible evidence occasions injustice of a character that would make the continuation of the proceedings on indictment an abuse of the process of the court.  This is not such a case.  The content of the monitor list and the recording made by FDR is unknown.  In these circumstances it is not correct to characterise their loss as an occasioning prejudice to the respondents.  The lost evidence serves neither to undermine nor support the Crown case”. ^[69]

38. [38]
    The court also said:

“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 facts 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”. ^[70]

Disposition

39. [39]
    It is my view that the loss of the evidence is unfortunate. However, the case is not such an extreme or exceptional case as to warrant the granting of a stay.

40. [40]
    In this case the content of the materials from 1993 is largely unknown. We do know that the defendant denied the allegations on each occasion. There is no specific evidence which sets out what the defendant could have provided the police in more recent times as to the allegations themselves.

41. [41]
    It seems that the lost material here is factually similar to that which was considered in Edwards in the sense that the lost material is largely unknown and serves neither to undermine nor to support the Crown case. 

42. [42]
    In modern times, it is not unusual for the Crown to bring charges many years after an alleged offence particularly where the offence is one of a sexual nature. It is not unusual for a child to reach adulthood and bring a complaint many years later. The Longman direction is the specific direction available to a trial judge where there is significant delay.  The Longman direction in this case can be fashioned to deal with the complaints raised by the defendant. 

43. [43]
    Further in my view a Robinson^[71] direction should also be given containing a very a strong warning to the jury about the need to scrutinise the complainant’s evidence with great care and that it would be dangerous to convict without doing so. In my view such directions would provide a satisfactory safeguard in this case. 

44. [44]
    It must be presumed that juries faithfully follow directions given by the Trial Judge.^[72]

45. [45]
    In this matter the court is not concerned with allegations over an extended period. The allegations concern one evening when the defendant babysat the complainant at Stafford Heights. The occasion of the babysitting is admitted. It is arguable there is an admission by the defendant that he and the complainant slept in the one bed. This issue is a narrow one: can the Crown prove, beyond reasonable doubt that the sexual offences occurred despite the defendant’s denials. This is not a case where potential alibi evidence has been lost. There is no suggestion of the loss of eyewitnesses.

46. [46]
    I do not consider that the loss of the first record of interview in the circumstances of this case causes irreparable prejudice. The key point is that there are denials of the central allegations in both.

47. [47]
    As to the loss of the complainant’s initial discussions with the police any suggestion of potential inconsistencies is speculative. In my view it is appropriate to make an order permitting the defence to cross examine the complainant on voir dire prior to the trial.  

48. [48]
    Also if required by the defence I would rule that the crown tender the defendant’s record of interview at the trial.

49. [49]
    In my view there is a strong public interest in having matters of this nature heard and determined by jury. The charges are serious ones and should be the subject of trial. There are directions available to address the defendant’s concerns and to ensure a fair trial.

50. [50]
    I do not consider the continuation of these proceedings is so unfair or so unjustifiably oppressive as to constitute an abuse of process and further, this is not an extreme or exceptional case.

51. [51]
    In those circumstances I decline to grant a stay. For the same reasons it is not appropriate to grant a temporary stay until the documents are found.

Order

52. [52]
    For the reasons given the application is dismissed.