R v JG[2020] QDCPR 97

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant applies, pursuant to s 590AA of the Criminal Code 1899 (Qld), for an order that the proceedings against him should be permanently stayed.

Charges

2. [2]
   The defendant is charged with the following counts:

   1. (a)
      Count 1: On a date unknown between 11 January 1963 and 13 January 1965, at Red Hill, the defendant unlawfully and indecently dealt with GH, a child under 16 years, under 12 years.
   2. (b)
      Count 2: On a date unknown between 11 January 1967 and 9 June 1969, at Ferny Hills, the defendant unlawfully and indecently dealt with GH, a child under 16 years, under 12 years.
   3. (c)
      Count 3: On a date unknown between 11 January 1967 and 9 June 1969, at Ferny Hills, the defendant unlawfully and indecently dealt with GH, a child under 16 years, under 12 years.
   4. (d)
      Count 4: On a date unknown between 11 January 1967 and 9 June 1969, at Ferny Hills, the defendant unlawfully and indecently dealt with GH, a child under 16 years, under 12 years.
   5. (e)
      Count 5: On a date unknown between 31 May 1968 and 31 August 1968, at Ferny Hills, the defendant unlawfully and indecently dealt with GH, a child under 16 years, under 12 years.
   6. (f)
      Count 6: On a date unknown between 31 December 1970 and 12 January 1974, at Albany Creek, the defendant unlawfully and indecently dealt with GH, a child under 16 years.
   7. (g)
      Count 7: On a date unknown between 31 December 1970 and 12 January 1974, at Albany Creek, the defendant raped GH.
   8. (h)
      Count 8: On a date unknown between 31 December 1970 and 12 January 1974, at Albany Creek, the defendant unlawfully and indecently dealt with GH, a child under 16 years.
   9. (i)
      Count 9: On a date unknown between 31 December 1970 and 12 January 1974, at Albany Creek, the defendant raped GH.

Evidence

Crown evidence

GH

3. [3]
   The complainant GH has given a statement dated 3 September 2018.^[1] She is presently 62 years old. She was born in 1958.
4. [4]
   The defendant came into their lives when she was about five years of age. He lived with the family at a house in Red Hill and was her stepfather. She believes the abuse by the defendant started when she was about six or seven in grade two.
5. [5]
   The first time it happened, the defendant entered her bedroom and put his hands between her thighs and rubbed his hand up and down. This happened often. She cannot recall how often but it was regular. When she was about five years of age, she recalls being downstairs with the defendant and he lifted up her skirt.
6. [6]
   In 1966, they moved to a house at Ferny Hills. After they moved into the house, the defendant became violent towards her and her brother SG. He also abused the mother at night after he had been drinking. He would use a belt on SG and the complainant, and they were terrified. She recalls one occasion when she was in grade eight, she was hit so hard she could not sit down properly when she went to school. The sexual abuse started to intensify at this stage with the accused touching her vagina.
7. [7]
   She recalls the defendant touching her on her pubic mound whenever they passed in the hallway, under the house or anywhere. He would call her into the bathroom and touch her.
8. [8]
   When her sister SM was about two years of age, she moved bedrooms. She slept in the same room as SM and her sister DR. Shortly after this, the defendant starting coming into the bedroom late at night and on occasions put his penis in the complainant’s mouth. She recalled another time when he came into the room and tried to roll her over. He then rolled her over and pushed his penis into her mouth. The complainant pretended she was asleep. This happened regularly.
9. [9]
   He also, on occasions, got into bed with her and made her hold his penis and moved her hand up and down on his penis. The defendant would eventually fall asleep and would start to snore.
10. [10]
    This happened about three or four nights in a row. She told him ultimately to leave her alone and he said “if it’s not you it will be DR”.
11. [11]
    On 30 June 1968, at her sister DR’s seventh birthday party, at the end of the party her mother left in the station wagon with SM, DR, her brother MG and a couple of party guests. The defendant called out to the complainant and told her to go to her room and take off her clothes and her undies. She screamed out “no” and ran outside and hid behind a fence until the mother came home.
12. [12]
    Shortly after this, the abuse by the defendant became digital penetration. This happened several times in the bathroom, his bedroom and once on the kitchen table. It happened when the mother was not at home. The defendant would have her sit on the end of the bed and lie back on pillows and he would pull her pants down, kneel in front of her and open her legs and digitally penetrate her. On another occasion, the defendant got her to sit next to him and showed her an image of a naked woman on her hands and knees with a dog mounting her. It was a bestiality pornographic comic strip.
13. [13]
    When she was 13 she went to a party. She and other kids fell asleep on the lounge room floor. The defendant woke her up, got her off the floor and led her across the room and put her hand on another man’s hand. The other man was a neighbour from a few streets away. He led her to another room and she started crying and saying no.  The man let her go. 
14. [14]
    In 1971, she started high school. During her high school years, the abuse progressed to full sexual intercourse. In her early high school years, the defendant would drive her to and from school. When he drove her to school, they would pass a tannery and when they drove past the tannery he would say to her “close your legs, I can smell you from here”. After school, he would drive her to his work place in the company Ute and she would wait for up to an hour for him to finish work. On the way home from work, he would go via Old Northern Road and turn off into the Bunya State Forest. He would park, make her lie down on the car seat to perform oral sex on her and then he penetrated her vagina with his penis. She recalls the first time this happened. It also happened a week after that. Earlier in year 10, her period started. The defendant made a comment about this. About two weeks later, she and the defendant were home alone and the defendant called her into his bedroom and she screamed at him “no, no more, never again”, she was shaking and hysterical. After that, no further sexual abuse occurred.
15. [15]
    After this, the complainant continued living in the family home but never told any about what happened because of shame and guilt. After the sexual abuse stopped, the defendant belittled and emotionally abused her. 
16. [16]
    In 1974, she left school and started working in the Valley. She dated SB, fell pregnant to him shortly afterwards and decided to keep the baby. After they moved to an address in Ferny Grove, the defendant punched her hard in the stomach, which caused a miscarriage. 
17. [17]
    In December 1980, she met her present husband KH and they were married in 1982.  In 1983, she told her husband that the defendant had abused her as a child but she did not go into the details. Between that time and February 2017, she shared some details with her husband. Her husband encouraged her to seek professional help about this.  In February 2017, she received a phone call from a man called Damien who asked her questions about the defendant, what he did to her, and whether she would go to the police. He also spoke to her about her sister SG and another woman called T.  After this phone call, the complainant went into a deep depression and had a breakdown. There was a further breakdown in November 2017. In June 2018, SM rang her and told her something about the defendant. In July 2018, she spoke with Detective Sergeant Moore and said she wished to make a complaint against the defendant and she attended the Petrie Police Station on 2 September 2018, and provided the statement.
18. [18]
    The complainant provided an addendum statement to police on 27 May 2020. In that statement she reveals that she has been clinically diagnosed with PTSD, clinical depression and severe anxiety. She is regularly awoken by nightmares and flashbacks of what happened to her. She has attempted to end her life twice because of the defendant. 

DR

19. [19]
    DR is the younger sister of the complainant and has provided a statement dated 22 January 2019.^[2] DR in her statement says the defendant was in her life from when she was very young, around three or four, until she was about 14 or 15. During this time, she was sexually abused by the defendant. When they were living at Ferny Hills, when she was around six or seven, she shared a room with GH, the complainant. She recalled the defendant coming in at night and doing things to the complainant in bed and can recall the complainant telling the defendant to stop. She was petrified as she would listen to the complainant moan and cry. This happened regularly.
20. [20]
    The first time the defendant interfered with her was on a weekend when she was around six or seven. She recalls walking into the kitchen at the house and saw GH lying on the kitchen table and the defendant’s pants were around his ankles. She was told to go to bed. A short time later, the defendant came into the bedroom, she was asked where she was sick and she said in her tummy. The defendant pulled her pants down, looked between her legs at her vagina and said “it’s red, that’s why you feel sick” she doesn’t recall if the defendant touched her at this time, but he then left her room. 
21. [21]
    DR says by the time her mother had another child SM, she and GH were moved into a bigger room, so all of the sisters could fit in there. After they moved into the bigger room, the defendant started coming into her bed. He would touch her vagina with his hands and fingers. Over time, this progressed to him straddling her and making her hold his penis in her mouth. This happened very frequently at Ferny Hills and when he would finish, he would go to the complainant GH’s bed and then end up in her bed. 
22. [22]
    When she was about nine or 10, the defendant started making her perform oral sex on him in his car. This happened on a couple of occasions. The defendant would drive to Camp Mountain Range, he would park the car and he would then put his penis in her mouth. He would also touch her vagina. The drives to Camp Mountain always happened at night at around 8:30pm or 9:00pm. Shortly after this, they moved to Ferny Grove, the defendant no longer took her to Camp Mountain.
23. [23]
    She believes they moved to Ferny Grove in 1972. At Ferny Grove, she shared a room with SG, and GH had her own room. She recalls the defendant being part of a band around this time. One evening, there was a party where the defendant came to her and took her into her brother’s bedroom and told her to wait there. The defendant sent one of his band friends into the room but nothing happened because she froze and ran out. 
24. [24]
    DR also describes the defendant as a very violent man who would bash her brother SG and hit the mother. DR used to babysit for a family at Wilston. She met MR and married him when she was 18. MR has since passed away. She told MR what the defendant did to her. 
25. [25]
    On one occasion, DR’s mother was hospitalised as a result of being assaulted by the defendant. After she was released from hospital, DR had told her mother what the defendant had done to her. As a result of this, when she was 14, the mother took her to the city police station and she gave her version. The police did not take her claim seriously at that stage. 
26. [26]
    In 2016, or perhaps early 2017, DR was contacted by another family member and was informed that SM had made a criminal complaint against the defendant as to what he did to her and to the defendant’s step-daughter TB. As a result of this, she decided to speak to the police. She went to the Petrie Police Station in May 2017 and made full disclosure. Sometime after this, she was advised that GH had gone to the police and made an official complaint.

Defendant’s material

27. [27]
    The defendant has provided an affidavit.^[3]  He says he is 80 years of age. He says that he could have been charged with the present offending in 2017 and was only charged 18 days before he was due to be released from custody for the matters involving TB and SM.
28. [28]
    He alleges that many witnesses he could call in his defence are deceased. 
29. [29]
    He says that he suffered a heart attack on 4 August 2020 and has previously been diagnosed with heart conditions, hypertension, polio and asbestosis exposure. He was first diagnosed with heart disease in 2005. He annexes various medical documents corroborating that which is stated in his affidavit. He has significant problems moving his arms to do daily functions. He relies on his wife to care for him. 
30. [30]
    He says as to the complaints against him, DO, who is his wife’s son, arranged for the police to interview his step-daughter, SM. At that stage, DR and GH declined to make statements against him. He was then charged with indecent treatment against his step-daughter TB on 13 March 2017. 
31. [31]
    On 26 July 2018, he was convicted in the Brisbane District Court on the charges involving TB. Whilst serving that sentence, he was charged with further offences against his daughter SM and he was convicted of those on 5 October 2018.
32. [32]
    He ultimately served from 26 July 2018 to 24 December 2018 in custody. He was charged with the present offences 18 days before his release from custody.  He alleges that the material witnesses who could have aided in his defence have died.
33. [33]
    Exhibits 5 and 8 are reports from Dr Khoo which corroborate the medical conditions referred to in the defendant’s affidavit. 

Defence submissions^[4]

34. [34]
    The defence submits that in this case there are a number of factors to be considered.  It is submitted the delay is lengthy, which is the primary reason for the stay. It is submitted in about February 2017, the complainant became aware that her sister had made a similar complaint of historical sexual abuse and decided not to bring a complaint at that time.  The complainant did not make a formal complaint to the police until 6 August 2018 which was 55 years after the first offence and 44 years after the last. It is submitted that the defendant has already served a sentence concerning the sister and another person. It is submitted the defendant is 80 years of age, plagued with health problems and requires help for everyday living. Witnesses are now dead who may have been able to give evidence on his behalf.
35. [35]
    In oral submissions, the defendant repeated and relied on his written submissions stressing in particular the delay, loss of witnesses, the charge 18 days before his release from custody, his health and his age.
36. [36]
    As to the Human Rights Act, the defence largely concurs with the submissions of the Attorney-General. However, if the Act does apply, there has been unreasonable delay here.^[5]

Crown submissions^[6]

37. [37]
    The Crown, on the other hand, submits that the circumstances surrounding the complaint being made can be explored in the cross-examination of the witness. It is submitted as to the alleged loss of the witnesses there is no identifiable prejudice to the defendant which could not be cured by directions, including a direction on the delay in making the complaint and the difficulties the defendant may face at trial as a result.  It is submitted this is not such an exceptional case which warrants a permanent stay.

In oral submissions, the prosecutor submitted that it is not unusual for a complainant to take their time in making a complaint. As to the lost witnesses, there is no identifiable prejudice here. In addition, in this case there is similar fact evidence to be led from DR who also witnessed offences against the complainant. As to the illnesses alleged by the defendant, these can be managed.

Attorney-General submissions^[7]

38. [38]
    The Attorney-General has intervened in these proceedings pursuant to s 50 of the Human Rights Act 2019 (Qld) (“HRA”).
39. [39]
    The Attorney-General submits that the HRA does not apply as the transitional provision in s 108 of the HRA applies. Alternatively, she submits that ss 31 and 32(2)(c) of the HRA are engaged, but refusing the stay would be compatible with human rights. It is submitted the HRA does not give human rights any freestanding operation, but it is acknowledged the rights are relevant to the relief sought by the defendant. It is submitted though that the right to a fair hearing under the HRA does not add a great deal to the common law. It is submitted the loss of the evidence in this case does not rise to the level of unfairness. It is further submitted that s 32 of the HRA is not engaged because the relevant period for determining whether delay is unreasonable is from the time of charge, not from the date of the alleged offence.  But even if delay is from an earlier point in time, it is submitted that s 13 of the HRA applies and a “structured proportionality” test applies and there is a real public interest to ensure allegations of sexual assault against children are determined by a court.  This includes the human rights of victims (s 29(1) of the HRA) and the best interests of the child (s 26(2) of the HRA). 

Discussion- the common law

40. [40]
    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.^[8]

41. [41]
    In Williams v Spautz,^[9] 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.”

42. [42]
    In Barac v DPP; Barac v Sterling,^[10] 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^[11], 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”.”

43. [43]
    In R v Edwards,^[12] 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.
44. [44]
    The High Court set aside the stay. However, in that case the Court noted that the trial Judge misstated the relevant test, i.e. whether the loss of the primary data and delay could constitute unacceptable justice. The Court noted at [33] that the content of the lost data was unknown and it was not correct to characterise the loss as occasioning prejudice to the respondents. The Court noted that the lost evidence served to neither undermine nor to support the Crown case. The Court noted that it was not the occasion to consider whether there may be circumstances where a stay may be given. 
45. [45]
    In Walton v Gardiner,^[13] 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.^[14]
46. [46]
    Considerations of “unfairness” require consideration of the public interest. The public interest includes the due administration of justice and in ensuring court processes are used fairly.^[15]
47. [47]
    Also it should be borne in the mind that a stay is not the only remedy available where there is injustice caused by delay. There may be other measures available which the court may employ, for example forthright directions to the jury.^[16]

Discussion - Human Rights Act 2019 (Qld)

48. [48]
    I now turn to the applicability of the HRA in this case. Section 108 of the HRA provides:

“108 Application of Act—generally

3. (1)
   This Act applies to all Acts and statutory instruments, whether passed or made before or after the commencement.

3. (2)
   However, this Act—

1. (a)
   does not affect proceedings commenced or concluded before the commencement; and

2. (b)
   does not apply to an act, or decision made, by a public entity before the commencement.

3. (3)
   Subsection (1) is subject to sections 106 and 107.”

49. [49]
    It is common ground the HRA commenced on 1 January 2020.^[17]  It is also common ground the defendant was issued with a notice to appear on 6 December 2018. The term “proceeding” in s 108 is not defined in the HRA. It is defined in the schedule to the Acts Interpretation Act 1954 (Qld) as “means a legal or other action or proceeding”.
50. [50]
    A “proceeding” is usually said to be an action or a step in an action.^[18]  It is my opinion that the word “proceeding” is qualified by the word “commenced”.  “Commencement” refers to the initiation of the proceeding and not any step in the proceeding.^[19]
51. [51]
    A criminal proceeding in Queensland commences by an arrest or by summons or by the service of a notice to appear under s 382 of the Police Powers and Responsibilities Act 2000 (Qld).^[20]  Such avenues are consistent with the High Court’s observation that the judicial process is engaged at the point in time an accused person is charged.^[21] 
52. [52]
    It is my opinion that the proceedings here commenced when the notice to appear was issued to the defendant on 6 December 2018.
53. [53]
    My conclusion is reinforced by the decision of King J in R v Williams.^[22] A similar view was reached in Director of Public Prosecutions (Vic) v Mokbel (No.1).^[23] 
54. [54]
    In my view, the HRA is therefore not engaged in this case. 
55. [55]
    In the event I am incorrect in that approach, I now turn to a specific discussion of the provisions of the HRA.
56. [56]
    It may be accepted that the HRA “does not give the human rights set out in it any freestanding operation”.^[24] However, the Act does state that the Human Rights Parliament specifically seeks to protect and promote and sets out the detailed operative provisions by which those rights are to be protected and promoted in s 4.
57. [57]
    In this case, there are two possible operative provisions, namely; the right to a fair trial set out in s 31 of the HRA, and a right to be tried without unreasonable delay set out in s 32(2)(c) of the HRA.
58. [58]
    Whilst a District Court is not a “public entity” and is not required to act compatibly with human rights under s 58(1) of the HRA,^[25] under s 5(2)(a) the HRA applies to the court to the extent the court has functions under Pt 2 and Pt 3, Div 3.  Part 3, Div 3 of the Act contains functions for the court such as the obligation to interpret legislation (if possible) compatibly with human rights.^[26]
59. [59]
    Part 2 sets out the protected human rights including the rights in ss 31 and 32 of the HRA.
60. [60]
    In Victoria, the authorities as to the equivalent provision of the Victorian Charter have held that these parts apply directly to courts and tribunals.^[27] Whilst there might be some debate in Victoria as to how the human rights apply directly to a court or tribunal, it is accepted that the right to a fair hearing and rights in criminal proceedings are capable of direct application and enforcement by the courts and tribunals under the equivalent of s 5(2)(a).^[28] Indeed in Director of Public Prosecutions (Vic) v Mokbel (No. 1),^[29] Whelan J applied the rights equivalent to ss 31 and 32 in an application for a permanent stay. 
61. [61]
    It may be accepted that the DPP and Crown prosecutors are public entities for the purposes of s 9 of the HRA and they are therefore required to act and make decisions in a way compatible with human rights under s 58(1) of the HRA. This would include the decision to commence a prosecution.^[30]  Section 59 of the HRA provides:

“59 Legal proceedings

3. (1)
   Subsection (2) applies if a person may seek any relief or remedy in relation to an act or decision of a public entity on the ground that the act or decision was, other than because of section 58, unlawful.

3. (2)
   The person may seek the relief or remedy mentioned in subsection (1) on the ground of unlawfulness arising under section 58, even if the person may not be successful in obtaining the relief or remedy on the ground mentioned in subsection (1).

3. (3)
   However, the person is not entitled to be awarded damages on the ground of unlawfulness arising under section 58.

3. (4)
   This section does not affect a right a person has, other than under this Act, to seek any relief or remedy in relation to an act or decision of a public entity, including—

1. (a)
   a right to seek judicial review under the Judicial Review Act 1991 or the Uniform Civil Procedure Rules 1999; and

2. (b)
   a right to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or an exclusion of evidence.

3. (5)
   A person may seek relief or remedy on a ground of unlawfulness arising under section 58 only under this section.

3. (6)
   Nothing in this section affects a right a person may have to damages apart from the operation of this section.”

62. [62]
    Section 59 of the HRA is based on s 39 of the Victorian charter.^[31] In Director of Housing v Sudi,^[32] Maxwell P explained that s 39(1) of the Charter has an operation which is both conditional and supplementary. Also, in Baker v Director of Public Prosecutions (Vic),^[33] the Victorian Court of Appeal held that an application for a permanent stay on the grounds of abuse of process amounts to an independent ground of unlawfulness for the purpose of s 39(1) of the Charter.
63. [63]
    With that background, I now turn to the two rights sought to be relied on.
64. [64]
    Section 31(1) of the HRA provides:

“31 Fair hearing

3. (1)
   A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.”

65. [65]
    The scope of s 31 must be ascertained by proceeding from the Common Law.^[34] In other words, the common law and s 31 are mutually reinforcing and the obligations arising under each are almost co-extensive.^[35] The concept of a fair trial does involve on occasions examining the question of delay.^[36] But the right to a fair trial requires the court to consider not only the interests of the accused, but the interests of the victim and the public.^[37]    
66. [66]
    There is a requirement for a defendant to point to some unfairness.^[38] It is my view for the reasons later mentioned, the loss of the evidence from witnesses is not sufficient in this case to grant a stay. Also, as I later mention, the interests of the victim and the public are important to a determination of this case.
67. [67]
    Further, it is my opinion that a crucial factor to be considered here is whether the defendant will receive a fair hearing from a competent independent and impartial tribunal.^[39]  It is my view that it is not suggested the defendant will not be tried by such a tribunal.

68. [68]
    Also, to be considered is s 32 of the HRA which relevantly provides:

1. “(2)
   A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees—

1. (a)
   to be informed promptly and in detail of the nature and reason for the charge in a language or, if necessary, a type of communication the person speaks or understands;

2. (b)
   to have adequate time and facilities to prepare the person’s defence and to communicate with a lawyer or advisor chosen by the person;

3. (c)
   to be tried without unreasonable delay;”^[40]

69. [69]
    The equivalent Victorian provision was considered by the Victorian Court of Appeal in Baker v DPP & Ors.^[41] In Baker, the accused unsuccessfully applied for a stay of the prosecution of sexual offences which were alleged to have occurred when he was a child. He was 17 when the alleged offences occurred in 2014 but he was not charged until he was 19 (an adult).
70. [70]
    The court held at [54] that the entity alleged to have breached the human right to a fair trial without delay was the DPP as they were continuing the prosecution, but taking into account any delay by the police.
71. [71]
    The critical question for the court was when the time began to run for the purpose of deciding whether the delay was unreasonable.
72. [72]
    The court considered the decisions of HM Advocate v R,^[42] Hughes v Police,^[43] and R v Nona,^[44] and at [83] and [85] determined that the time begins to run after charge.
73. [73]
    In the present case, this is 2018. There has not been unreasonable delay here. 
74. [74]
    Section 32(2)(c) of the HRA is not engaged in this case.
75. [75]
    Even if this court calculated delay from an earlier point in time than time of charge, s 13 of the HRA applies which uses a “structured proportionality” test.^[45]
76. [76]
    Section 13 of the HRA provides:

3. “(1)
   A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.

3. (2)
   In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—

1. (a)
   the nature of the human right;

2. (b)
   the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;

3. (c)
   the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;

4. (d)
   whether there are any less restrictive and reasonably available ways to achieve the purpose;

5. (e)
   the importance of the purpose of the limitation;

6. (f)
   the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;

7. (g)
   the balance between the matters mentioned in paragraphs (e) and (f).”

77. [77]
    I accept the Attorney-General’s argument that when one considers “proper purpose” in s 13(2)(b) of the HRA, there is a very real public interest in ensuring that allegations of sexual assault against children are determined by a court.^[46]
78. [78]
    This also serves to vindicate the human rights of victims including security of the person under s 29(1) of the HRA and the best interests of the child under s 26(2) of the HRA.
79. [79]
    As to “fair balance” mentioned in s 13(2)(e), (f) and (g) of the HRA ,“a fair balance must be struck between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights”.^[47] Whilst the delay here is significant, there is no delay by public authorities of the court. Even with significant delay, the need to prosecute allegations of child sexual offences is important. Ultimately, it is my view the importance of doing so outweighs any impact on the defendant because, for the reasons which I later mention, those impacts will not preclude him from obtaining a fair trial.

Disposition 

80. [80]
    In this case, it is of concern of course that the alleged offences occurred between 44 years and 55 years ago. On the other hand, there is a reasonable case against the defendant. There is not only the evidence of DR which directly corroborates the accounts of the complainant but there is also similar fact evidence.  DR is the younger sister of the complainant and her evidence proves that the defendant had a tendency to:

    1. (a)
       engage in repetitive sexual offending with his step-daughters whilst at the family home, including in their bedroom at night; and
    2. (b)
       travel to remote locations in his vehicles with the step-daughters in order to sexually offend against them.
81. [81]
    The sexual offending against DR makes it more likely the defendant engaged in sexual conduct with the complainant. The prohibitive force of the evidence lies in the improbability that two sisters from the same household without collusion would falsely allege the defendant engaged in sexual activity towards them in similar circumstances.
82. [82]
    I note the defence abandoned its application to exclude DR’s evidence.
83. [83]
    I agree with the Crown submissions that the potential evidence from the deceased witnesses is speculative, bearing in mind that the allegations are that the offences occurred in private with no other adult witness present. Any lost material is largely unknown and serves neither to undermine nor to support the prosecution case.
84. [84]
    In recent times, it has not been 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.
85. [85]
    The case before me unfortunately is one of these cases. Sexual allegations are often made many years after the event. There can be many reasons for this including shame and family pressures, as is the case here. In my view, one can understand why the complainants did not choose to proceed with their complaints until more recent times, bearing in mind the family dynamics.
86. [86]
    There are directions which may be given which alleviate the prejudice arising from the delay.
87. [87]
    Firstly, s 132BA of the Evidence Act 1977 (Qld) provides:^[48]

“132BA Delay in prosecuting offence

3. (1)
   This section applies in relation to a criminal proceeding in which there is a jury.

3. (2)
   The judge may, on the judge’s own initiative or on the application of a party to the proceeding, give the jury a direction under this section if the judge is satisfied the defendant has suffered a significant forensic disadvantage because of the effects of delay in prosecuting an offence the subject of the proceeding.

3. (3)
   For subsection (2), a significant forensic disadvantage is not established by the mere fact of delay in prosecuting the offence.

3. (4)
   In giving the direction, the judge—

1. (a)
   must inform the jury of—

1. (i)
   the nature of the disadvantage; and

2. (ii)
   the need to take the disadvantage into account when considering the evidence; but

2. (b)
   must not warn or in any way suggest to the jury that—

1. (i)
   it would be dangerous or unsafe to convict the defendant; or

1. (ii)
   the complainant’s evidence should be scrutinised with great care.

3. (5)
   However, the judge need not give the direction if there are good reasons for not doing so.

3. (6)
   The judge must not, other than under this section, give the jury a direction about the disadvantages suffered by the defendant because of the effects of delay in prosecuting the offence.

3. (7)
   In this section— delay, in prosecuting an offence, includes delay in reporting the offence.”

88. [88]
    In my view, a trial Judge would give a detailed direction under this section.
89. [89]
    Further, in my view, a Robinson^[49] direction should also be given containing a very strong warning to the jury about the need to scrutinise the complainant’s evidence with great care. In my view, such a direction would provide a satisfactory safeguard in this case. It must be presumed that juries faithfully follow directions given by the trial judge.^[50]
90. [90]
    Insofar as there is any unfairness concerning the fact the defendant had been sentenced to imprisonment relating to other offences, this can be addressed by the application of the totality principle.
91. [91]
    In all of the circumstances, despite the passage of time, the delay in prosecution and the potential loss of some evidence, in my view, this is not a case which is so extreme as to justify the exceptional step of a stay.

Conclusion

92. [92]
    I dismiss the application.