R v Porter (No. 2)[2018] QDCPR 4

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is a further application by Mr Porter pursuant to s 590AA of the Criminal Code for an order that the proceedings against the defendant be permanently stayed. The parties filed written outlines of argument and the applicant had previously supplied two volumes of supporting material in relation to the previous application.^[1]  The arguments were heard on 13 December 2017. 

Background

2. [2]
   The defendant was previously charged with 3 counts of rape and 1 count of indecent dealing with a person with a mental impairment. In the previous proceedings I ordered that, in respect of a challenge to the admissibility of certain representations made by the complainant, the challenged evidence was admissible in respect of counts 1, 2 and 4 on the indictment, but excluded in the exercise of the court’s discretion under ss 98 and 130 of the Evidence Act 1977 (Qld).

3. [3]
   That ruling produced the result that the prosecution accepted that it could not proceed further with the rape counts and at the hearing of this application a nolle prosequi was indicated and the defendant was discharged on those counts. However, the prosecution intends to continue to press count 3, the indecent dealing. It is this which is challenged by the applicant.

4. [4]
   The further background is that, as previously outlined, the unfortunate complainant suffers from a chromosomal disorder and thus has severe intellectual disability. It was previously found on a separate hearing in 2015 that she is not competent to give evidence in this proceeding, pursuant to s 9A of the Evidence Act 1977 (Qld).

5. [5]
   In the previous application heard in March 2017, I concluded that the challenged evidence in relation to the rape counts was admissible but excluded it in the exercise of the court’s discretion.

6. [6]
   This leaves the prosecution in the position that it intends to proceed with the indecent dealing count on the basis, broadly, of three bodies of evidence. Firstly, there was a record of interview between the police and the defendant in which he is said to have made some relevant admissions; secondly, there is scientific evidence establishing a connection between the defendant and the allegation that he fondled and licked the complainant’s breasts. In addition to this, the prosecution case is that count 3 includes the complainant masturbating the defendant. This is also supported by passages in the record of interview. Thirdly, it is clearly established, by evidence such as that which is available from Dr Keane, that the complainant is a person with a relevant mental impairment. Section 216 of the Criminal Code makes it an offence for a person to unlawfully and indecently deal with a person with an impairment of the mind.  “Person with an impairment of the mind” means a person with a disability that:

1. (a)
   is attributable to an intellectual, psychiatric, cognitive or neurological impairment of a combination of these; and

2. (b)
   results in:

1. (i)
   a substantial reduction of the person’s capacity for communication, social interaction or learning; and

2. (ii)
   the person needing support. 

These matters are established, so the argument goes, on the prosecution medical evidence, and the defendant’s knowledge of such a condition is argued to be established by some of the answers in the record of interview.   Thus, the prosecution stance is that the case on count 3 can fairly and properly proceed.

Defence submissions

Lack of Procedural Fairness

7. [7]
   The defence arguments can be summarised as follows. Firstly, the stay of count 3 is justified by the lack of procedural fairness which is intrinsic in the procedure proposed by the prosecution. As I referred to in my previous judgment at [23], the complainant is simply unavailable to be cross-examined at the trial and this is a loss of the most basic ingredient of procedural fairness. The defendant is deprived of the ability to test or challenge the evidence led against him. Perhaps, more importantly, he is unable to adduce through the complainant, matters favouring him on count 3. For example, where the “admissions” in the record of interview are marginal at best (the defence submission is that there really are no relevant admissions), the lack of ability to cross-examine the complainant prevents the defendant from adducing evidence touching on the defences in s 216(4)(a) and (b) of the Code.  Thus, if the complainant were available, questions could be put to adduce evidence consistent with the belief which the accused is required to establish on reasonable grounds, that she was not a person with an impairment of the mind.  Perhaps, more importantly, he is also denied cross-examination along the lines that there was no sexual exploitation.

8. [8]
   The loss of the ability to canvass these topics, particularly in the situation where s 216(4) casts a persuasive onus on a defendant, is submitted to be a fatal flaw to the fairness of the trial. The applicant refers to passages from Walton v Gardner^[2] particularly at p392 per Mason CJ, Deane J and Dawson J where there was reference to the power to make an order staying proceedings if a court “is satisfied” that the continuation of the proceedings would be “so unfairly and unjustifiably oppressive” as to constitute an abuse of process.  Their Honours made plain that the court would only be so satisfied in an exceptional or extreme case.  Mahoney JA (in the NSW Court of Appeal) adopted a similar approach, while formulating the appropriate test in slightly different words.  His Honour considered that the question for the Court of Appeal was whether, in all the circumstances, the continuation of a proceeding before the Tribunal would involve unacceptable injustice or unfairness.  The High Court said “In our view, the approach adopted by the members of the Court of Appeal was correct”.  Their Honours also referred at page 393 to the power to prevent misuse of procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair, or would otherwise bring the administration of justice into disrepute among right thinking people.  The court also referred to Jago v District Court (NSW)^[3] and the judgment of Justice Gaudron (page 74) that:

“The power of a court to control its own processes and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands.”

9. [9]
   The applicant submits that it is clear that proceeding with the trial as foreshadowed without the ability for the complainant to be cross-examined, is a serious defect in the normal arrangements of procedural fairness. This is magnified in this case by the circumstance that the trial would proceed under s 216 of the Code, where subsection (4) provides for a reversal of the normal onus of proof; there is a greater degree of unfairness than might otherwise be the case.

10. [10]
    The applicant also submits that there is a fundamental right for a defendant in a case of this kind for him to be able to face his accuser; a distaste for any kind of “star chamber” procedure. That right is denied him in the present case.

Inevitable Failure

11. [11]
    Secondly, the applicant also argues on an alternative basis that the same absence of the ability to adduce evidence from the complainant suggests the inevitable failure of the prosecution. This is because, despite bearing the onus on the issues in s 216(4), the applicant does give uncontradicted evidence supporting each of the suggested defences, and without any contradictory evidence the jury would be required to act thereon with the result that the prosecution would inevitably fail. This concept was referred to in Walton v Gardner at page 393:

“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.”

This is said to be one of the 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.

12. [12]
    Further, the applicant points out that the unfairness produced by the above difficulties is not the kind of unfairness which is remediable by either a direction from the trial Judge as to some aspect of it or, for example, producing some other evidence. The situation is permanent and irremediable that the complainant is not available to give evidence. In the circumstances, therefore, the applicant argues that a stay of proceedings is appropriate.

Prosecution response

13. [13]
    In response, the learned crown prosecutor refers to the full context of the record of interview which, so it is argued, effectively cures any unfairness. Relevant passages from page 53 onwards include the admission by the defendant, in response to a question as to whether he had noticed anything unusual about the complainant, that she was “a little bit slow”. Asked for the indicia of this, he said:

“Oh just the way she talks and I had a friend there one day and she was there and as I said she’s got a pretty foul mouth.”

He continued with a narrative that in the presence of his friend Mario, another apparently adult male, the complainant had asked one of them to “lick my pussy”.  Mario was “freaked out”.  The defendant’s narrative continued that someone had said something to her one day and she said “oh fuck off you cunts or something like that”.  She was in the habit of riding her quad bike up and down the road and was reproached by someone from the local council.  In the defendant’s words “she told him to fuck off too” – she’s pretty wild”.  He said “she’s very familiar with everyone”.^[4]  He had not spoken to anyone about her being unusual and when asked about any possible disability he said “no as far as I know she gets around and everything all right”.  He said “she’s not subnormal”.  He said that he was not aware of any disability she might have.^[5]  He admitted that she had taken her top off and he fondled her breasts; he sucked her breasts and she masturbated him at her suggestion. 

14. [14]
    The prosecutor submits that the full context of the interview is that the defendant had quite extensive knowledge of the complainant over a four year period. There was a large age gap between them, in the order of 50 years. It would have been patently obvious to someone in his position that dealing with someone with the large degree of mental impairment that the complainant suffers from, that she did have such an impairment, and in those circumstances the jury, while accepting the truth of all or most of the defendant’s narrative in the record of interview, could nevertheless conclude that he had not established on the balance of probabilities, that he believed on reasonable grounds, that she was not a person with an impairment of the mind. Secondly, that conclusion, if reached, would drive the jury to the following conclusion that the sexual interaction between them did in fact, constitute sexual exploitation of the complainant who did have the relevant impairment of the mind. In other words, whether the defences in s 216(4) are made out on the uncontradicted evidence, remains a jury question. Of course, this line of argument rather begs the question of to what extent the jury would be handicapped in assessing this question by the absence of the complainant; they could not make their own observations of her.

15. [15]
    As to whether there is objectionable unfairness in conducting such a trial without calling the complainant such as to allow the defendant to adduce potentially helpful evidence, the prosecutor’s answer is that the nature of the record of interview is such as to cure any potential unfairness. The defendant is able to test the case against him and there is no fundamental defect or unacceptable unfairness. A stay is an exceptional remedy, not justified in this case.^[6]

Discussion

16. [16]
    The prosecutor’s submission that it would have been patently obvious to the defendant that the complainant suffered from the relevant impairment highlights one of the basic problems with the proposed procedure, namely, that the jury would be asked to assess this argument without seeing or hearing from the complainant. This is, in my conclusion, impractical and unworkable. Such an assessment could not be made on hearsay material or in the abstract.

17. [17]
    Moreover, despite the prosecutor’s helpful and thoughtful submissions, I also accept the applicant’s submissions as to procedural fairness outlined at paragraphs [7] to [10] above. The continuation of the proceedings would be so unfairly and unjustifiably oppressive as to represent an abuse of process and thus a stay is appropriate. As to inevitable failure, although the applicant’s submissions have considerable force, it is not necessary for me to reach a conclusion on this issue. The proceedings on count 3 will be permanently stayed.