R v DAL [No 2][2021] QDCPR 61

DISTRICT COURT OF QUEENSLAND

1. [1]
   For the second time, the applicant is charged with several serious sexual offences alleged to have been committed by him against his younger sister, Lucy (a pseudonym).  Lucy would have been aged between five and nine during the period charged.  
2. [2]
   The applicant applies to have the indictment permanently stayed.  He says it an abuse of process.
3. [3]
   For the reasons which follow, his application should be refused.
4. [4]
   The proceedings have some history.
5. [5]
   In the course of executing a search warrant at the home of the applicant, his parents and his siblings on 15 December 2017, the applicant made confessional statements to a police officer.  Those confessional statements related to contact sexual offences committed by the applicant against Lucy.  The police had entered the premises under the authority of a warrant which had been obtained to permit a search for warrant evidence or property in relation to an offence of possessing child exploitation material.  
6. [6]
   When police had arrived at the home and commenced their execution of the warrant, the applicant was not present at the dwelling.  His father and one brother were. His mother and other siblings were out at the time.  At the urging of police they were enticed by the applicant’s father to return home.  When at home, the applicant was taken, alone, to the upstairs part of the house.  When there, the police officer asked questions of the applicant which went beyond any investigation of an offence for possession of child exploitation material.  What prompted him to do so was something which the applicant’s father had earlier said, in the applicant’s absence, about his wife having on one occasion, quite a while ago, found the applicant in bed with his younger siblings.  
7. [7]
   Police seized a number of electronic devices during the course of the search.  
8. [8]
   The applicant’s confessional statements resulted in the applicant accompanying the officer to a police station where he was formally interviewed.  He made further confessional statements.  
9. [9]
   The applicant’s confessional statements, both at his home and in the formal interview, resulted in him being charged on indictment with eight counts of rape.  He was also charged with one count of making child exploitation material and one count of using a carriage service to access child pornography material and one count of possessing child exploitation material.
10. [10]
    In an earlier ruling,^[1] the Court ruled that the confessional statements made by the applicant followed statements of inducement made by police and in the absence of any warning that anything which he did say may be used against him in proceedings for contact sexual offences against children.  Those statements of inducement were made at the home but were also found to be acting upon the applicant when he made further confessional statements when formally interviewed later in the day.  All the statements were thus ruled inadmissible upon his trial by operation of s 10 of the Criminal Law Amendment Act 1894 and were ordered to be excluded.  
11. [11]
    Following that ruling, which was made on 22 March 2019, the applicant indicated that he would enter guilty pleas to the offences of using a carriage service to access child pornography material and of possessing child exploitation material.  
12. [12]
    On 25 March 2019, three days after that ruling, the applicant was sentenced in relation to the two offences to which he pleaded guilty. The Crown entered a nolle prosequi in relation to the eight rape charges and the charge of making child exploitation material.   

13. [13]
    He was sentenced to 465 days imprisonment with 465 days of pre-sentence custody declared as time served under those sentences. It was considered by the sentencing Judge that that period of pre-sentence custody exceeded what would have been otherwise imposed for those two offences. Indeed it was said that he may not have been ordered to serve any actual time in prison. 
14. [14]
    On 12 July 2019, the applicant was again charged, this time with three charges of rape, two of indecent treatment of a child under 16 under 12 and four of making child exploitation material.  An indictment was presented on 9 March 2021.
15. [15]
    All the current charges are said to rely on child exploitation material found on the devices seized during the search on 15 December 2017.  Following the seizure of those devices, they were forensically examined and a categorisation report and an Internet Evidence Finder program report were prepared.  The categorisation report is referred to in the applicant’s submissions as a C4All which is said to include a C4M and a C4P report.  Those reports were provided to the Office of the Director of Public Prosecutions.  
16. [16]
    The applicant says that in the lead up to the hearing of the application to exclude the confessional evidence, he put the Crown on notice through his outline of submissions on that application that his understanding of the state of the evidence was that the prosecution was relying solely on the admissions made by him in relation to all of the offences, other than that of possessing child exploitation material.  On this application he says that “this erroneous assertion was not corrected by the Crown and, in fact, was endorsed as being correct”.  
17. [17]
    For its part, the Crown contests the categorisation of that earlier assertion as “erroneous”. It says that the charges which were the subject of the earlier indictment did in fact rely solely upon the admissions of the applicant.
18. [18]
    To resolve this issue, a little more needs to be said about the state of the evidence and the Crown’s state of knowledge of the evidence at the relevant time.  It is convenient for that purpose to adopt the timeline set out in Appendix 1 to the applicant’s written submissions. 
19. [19]
    The applicant identifies that on 7 January 2018, approximately three weeks after the devices were seized, the arresting officer submitted the devices to the “EEU” for examination.  The “EEU” is not otherwise identified but I infer it to be Evidence Examination Unit, or some such body.  
20. [20]
    The applicant next identifies that “within about three months’ of January 2018” the arresting officer conducted a review of the data from the seized devices provided by the EEU and categorised the images. It is not clear whether it was the EEU’s report which categorised the images or the arresting officer who performed that categorisation upon his review of the data.  In any event, it is noted that the five videos upon which the current charges rely were included in the material.  
21. [21]
    Between the time of his conducting that review and 23 July 2018, the arresting officer received a disc containing the C4All (C4M and C4P) and Internet Evidence Finder reports.  
22. [22]
    On 23 July 2018 the arresting officer disclosed a disc with the C4All and two printed copies of the C4All report to the ODPP.  The following day, 24 July 2018, the ODPP purported to disclose the C4All reports to the applicant’s legal representatives.  The applicant notes that it was actually only the C4P report which was disclosed at that time. In doing so the ODPP provided a notice concerning CEM stating: “One disc containing C4All and IEF reports is considered ‘sensitive’ evidence and, on request, can be viewed.”  The applicant notes that this notice did not indicate that there was, or could be, CEM of contact offending with Lucy included within that material.
23. [23]
    On 1 November 2018 there was a registry committal of 19 charges of indecent treatment of children, 17 charges of rape, one of making child exploitation material, one of attempted indecent treatment of children and one of using a carriage service to access child pornography material.  
24. [24]
    The next event identified by the applicant on the timeline is of some significance.  On 7 November 2018 an officer within the ODPP made a note in “indictment advice” under the heading “outstanding requisitions”.  The note read:

“The AO made mention that there seemed to be some videos of Lucy also on the laptop, but this has not been identified by any of the statements or other evidence, and there are almost 1500 videos of CEM that would need to be viewed to work out which, if any, contained the complainant.  Given that I do not know what she looks like, and our office policy on viewing CEM, I have not taken the ‘making CEM’ count any further than the photos admitted by the defendant.”

25. [25]
    The applicant emphasises that this information was not provided to him or his legal representatives at any time before he was sentenced.
26. [26]
    The applicant next identifies that in early 2019 prior to finalisation of the first prosecution, the arresting officer conducted a secondary review of the data provided by the EEU and identified multiple videos depicting the applicant engaged in sexual offending with Lucy.  The officer tagged and bookmarked those videos within the C4All and Internet Evidence Finder programs and requested a disc containing the relevant items for report.  The applicant emphasises that the videos which the officer tagged were those outlined as being the foundation for the charges on the current indictment.  
27. [27]
    The applicant’s outline of submissions in respect of the application to exclude the interviews was filed on 19 February 2019. It included the assertion that “the prosecution case relies solely on the admissions made by the defendant in relation to all but the last mentioned offence”, that last offence being the possession of child exploitation material.  On 27 February 2019 the Crown’s outline of submissions indicated, generally, the accuracy of the facts set out in the applicant’s outline, including as to the sole reliance on the admissions. It also included an express statement to that effect.  The applicant contends that this submission by the Crown was:

“…made in circumstances where the Crown were aware that there ‘seemed to be videos of the child Lucy on the laptop’ (CEM videos). LAQ were not informed at any time during the s 590AA hearing or sentence negotiations that there were potentially videos of Lucy on the electronic devices.”

28. [28]
    On 22 March 2019, following the ruling excluding the applicant’s interviews with police, the applicant indicated that the remainder of the charges on the original indictment could be listed for sentence.  On the same day the ODPP sent an email to the arresting officer informing him of the court’s ruling.  The legal officer who wrote that email, said: 

“As you would be aware, the defendant’s admissions are the only basis upon which Counts 1 to 9 of the indictment were able to be substantiated (8 x rape and 1 x making CEM).  Given there is no evidence to substantiate these counts outside the admissions that have now been excluded, our office will be discontinuing those offences.”

29. [29]
    On 24 March, two days after the court’s ruling, the applicant’s legal representatives advised the ODPP that they had only ever been provided with the C4P report and not the other reports.  Some negotiations ensued around the charging period for the offence of having used a carriage service to access child pornography material.  
30. [30]
    On 25 March 2019, the day of sentence, the ODPP disclosed the C4M and C4P reports and individual folder breakdowns for movies and pictures.  The applicant was sentenced on his guilty pleas to counts 10 and 11.  Counts 1 to 9 were discontinued.
31. [31]
    On 19 April 2019 the arresting officer replied to the ODPP legal officer’s email of 22 March.  The arresting officer indicated that he had just returned from leave and had only then read the email which had been sent almost a month earlier.  The arresting officer said:

“I have made mention during phone calls with your office how the CEM actually contains numerous videos of the defendant offending against the victim child…this evidence was provided as part of the brief and is contained in the reports.”

32. [32]
    On 26 April 2019 the legal officer responded to the arresting officer saying:

“I am not sure what you recall of the conversation had in relation to the videos, but my contemporaneous notes state: ‘the AO made mention that there seemed to be videos of Lucy also on the laptop’.  I do not recall any other mention of videos at any other time.”

33. [33]
    On 30 April 2019 the arresting officer forwarded a table of videos, being those which found the current indictment, that he indicated were all tagged in the C4All and/or IEF reports.  He indicated that “being tagged and bookmarked it would of [sic] shown specifically in any report given to DPP”.

34. [34]
    On 12 July 2019 police executed a search warrant at the applicant’s home.  He was arrested on three charges of rape, two of indecent treatment of children and four of making child exploitation material.  On 14 July 2019 a further search warrant was executed at the home.  On this occasion police interviewed Lucy, but she made no disclosures.
35. [35]
    On 8 August 2019 the arresting officer indicated to a third party that he had “all my evidence for the FBOE and will not be obtaining further statements from any of the parties”.
36. [36]
    On 15 July 2020 the ODPP disclosed to the applicant’s legal representatives an indictment synopsis dated 7 November 2018 and advice of the legal officer in which it was noted that she had discussed the brief material with the arresting officer in the months prior to the committal of the original charges.  Notes were made on a post-it note which were then included in the advice document which was dated 7 November 2018.  That was the note that included the comment about the arresting officer having made mention that there seemed to be some videos of Lucy also on the laptop, but that this had not been identified by any of the statements or other evidence.
37. [37]
    Having set out that history, I am of the view that the prosecution case for the discontinued charges on the previous indictment did rely solely on the applicant’s admissions.  All the evidence supports that conclusion.  
38. [38]
    The assertion made to that effect by the applicant in his outline of submissions on the earlier application to exclude that evidence was not, as he now asserts, erroneous.  It went uncorrected and was confirmed by the Crown in its outline because it was correct.  The application to exclude that evidence was conducted before the court on that basis.  There could be no stronger confirmation of that than the almost immediate discontinuance of those charges after the confessional evidence was excluded. The legal officer had emailed the arresting officer immediately after the court’s ruling informing him that that course would be taken because of the absence of any other evidence in support of those charges. 
39. [39]
    The applicant now seeks to impute to the Crown a state of knowledge of the existence of other evidence, at that time, which knowledge it simply did not have.
40. [40]
    The applicant’s submission that the Crown had in its possession child exploitation material that implicated the applicant in the charges then before the court may be accepted. His further submission that the Crown had been informed that the child exploitation material contained videos of him engaged in conduct with his sister, Lucy, is not made out on the material before the court. The note made by the legal officer on 7 November 2018 was that the arresting officer “made mention that there seemed to be some videos of Lucy also on the laptop”. Taking that note at its highest for the applicant, it does not support the contention that the Crown had been informed that the child exploitation material contained videos of him engaging in conduct with Lucy. 
41. [41]
    First, the note does not expressly contain such a statement. The information recorded in the note did not mention the applicant. 
42. [42]
    Secondly, videos of Lucy would be relevant to either, or both, the charge of making or possessing child exploitation material; but not necessarily be relevant to any contact offences with which he was then charged. The legal officer appears to have viewed any potential relevance of such videos in that way. That she did so is strongly suggested by her recording in the note that because she did not know what Lucy looked like and because of the policy on viewing child exploitation material, she had “not taken the ‘making CEM’ count any further than the photos admitted by the defendant”. There is nothing in the note that suggests the legal officer considered any such videos potentially relevant to the, then, charged contact offences.

43. [43]
    The applicant’s further submission that “despite this knowledge, the Crown elected not to proceed with the charges and discontinued those charges when the applicant offered to plead guilty to two of the 11 counts”, is also unsustainable. It again imputes to the Crown a knowledge of relevance of the videos of Lucy to the contact offences; which knowledge did not exist. Furthermore, it imputes to the Crown a conscious decision not to proceed with those charges notwithstanding that knowledge; which decision was never made. 
44. [44]
    The arresting officer’s subsequent statement on 19 April 2019 that “I’ve made mention during phone calls with your office how the CEM actually contains numerous videos of the defendant offending against the victim child”, takes the matter no further because of the legal officer’s contradiction of it in her reply email a week later. The accuracy of the legal officer’s recollection, as supported by her contemporaneous note, has not been put in contention by the applicant on this application.
45. [45]
    When the knowledge and conscious decision-making which the applicant imputes to the Crown falls away, the consequent oppression and unfairness he ascribes to the further charges fall away with them. 
46. [46]
    Unlike in R v Viers,^[2] from which the applicant seeks support, this is not a case in which a decision has been made not to prosecute a charge when the decisionmaker “had all the relevant information” in the sense considered in that case. 
47. [47]
    The starkly different state of actual knowledge and informed deliberate decisionmaking in Viers can be illustrated from the following extract from the recitation of facts in the judgment:

“Some months went by during which the police had all the relevant information but no further charge was brought, nor was any intimation given to the accused or to his solicitors that the police had decided to bring a charge of possession for a prescribed purpose, which is a far more serious charge.

The above matter duly came on before a magistrate on March 5, 1982. The police were outside the court room waiting to arrest him on the present charge while he was pleading guilty to the original charge.”^[3] [48] Thomas J (as his Honour then was) went on to observe:

“In the present case, I am at a loss to see why the police proceeded with the first charge and waited for the plea of guilty and conviction thereon before disclosing their intention to press on with the more serious charge. Had the accused known of this intention he may very well have decided not to plead guilty to the first charge. The history of events may have been quite different.”^[4]

49. [49]
    In Viers there was a unity in the police having full knowledge of the state of the available evidence and their making prosecutorial decisions informed by that knowledge. 
50. [50]
    In this case, the decision to discontinue the charges was made by an officer within the ODPP, not the police. The former, although in possession of the videos, did not have the latter’s knowledge of them. 
51. [51]
    Far from one being at a loss to see why the former charges were discontinued and these charges now brought, it is pellucidly clear. 
52. [52]
    This case is also different to Director of Public Prosecutions (Qld) v Wentworth.^[5] In that case,^[6] from which the applicant also seeks support, one Crown Law officer offered to accept pleas of guilty to five counts on the 13 count indictment. The accused man did not accept that offer. Later, a second Crown Law officer, in ignorance of the earlier offer, offered to accept guilty pleas to two of the 13 charges and to discontinue the remainder. That offer was accepted. The agreed course was followed. After the defendant was arraigned on those two charges and he had pleaded guilty to them, the allocutus administered and nolle prosequis entered in respect of the remainder, but before sentence was passed, the Crown sought to proceed on a fresh indictment with fresh charges for what were some of those previously discontinued. The Court of Appeal upheld the primary Judge’s decision to stay the new indictment. There, although the second officer within the ODPP made his or her decision in ignorance of the earlier offer of the first officer, both made their own prosecutorial decisions in full knowledge of the true state of the evidence. 
53. [53]
    In Walton v Gardner,^[7] Mason CJ, Deane and Dawson JJ said:

“As was pointed out in Jago,^[8] 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.”

54. [54]
    In my view, the balancing of those factors in this matter weighs heavily against staying the indictment.  It is difficult to discern any relevant prejudice to the applicant.
55. [55]
    Barac v DPP; Barac v Sterling,^[9] was a case concerning drug offences.  Prior to a scheduled committal hearing an agreement was reached between the DPP and the accused whereby no evidence would be offered on charges of trafficking, supply and production of dangerous drugs upon the defendant consenting to being committed for sentence on possession charges with agreement that the possession was for a commercial purpose.  
56. [56]
    That course was followed (although irregularly as the defendant was committed for sentence without having entered a guilty plea).  Subsequently, after consideration of a report by a forensic accountant in relation to the defendant’s financial affairs, he was again charged with trafficking.  
57. [57]
    Keane JA (as his Honour then was, with McMurdo P and Jerrard JA agreeing), in addressing the issue of prejudice, said:

“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 a 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 these circumstances, alone and without more, justify a stay of proceedings.  The strong public interest and 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 way where a prosecution is pursued for an improper purpose and 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,^[10] 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’.”^[11] [58] Those observations are apposite in this case.

59. [59]
    The applicant submits that had he been informed of the potential for further charges to be brought against him, or that there was evidence in existence that supported some of the charges that were being discontinued, he would have been able to have been advised and to make appropriate informed forensic decisions in respect of his case.  He says he was deprived of that opportunity.  He says he may well have taken a different course.  He submits that unfairness and delay cannot be undone.  
60. [60]
    It is difficult to see what different course he may have taken, or what appropriate informed forensic decisions he may have made, had he been made aware of the existence of evidence that supported some of the discontinued charges other than, perhaps, deciding not to seek the exclusion of the confessional statements and to plead guilty to the charges.  It is not the case that the applicant’s confessional statements would be necessary to identify the applicant as an otherwise unidentifiable male person in the videos.  From the description of the videos in the schedule of facts, in at least one he shows his face.  Even if his face is not evident in others, the circumstantial case that it is him would seem strong.  Lucy can be seen. There are identifying objects. The videos were found on his laptop. In those circumstances, pursuing the application to exclude the confessional statements would have had limited utility in his overall defence.  
61. [61]
    Awareness of the existence of that evidence at the earlier of time is unlikely to have had any bearing upon his decision to plead guilty to the charges to which he did plead; other than to strengthen his resolve to do so.  
62. [62]
    That pleas of guilty to, or conviction upon, charges of contact sexual offending would have resulted in his being sentenced for those matters at an earlier time, is a matter to which a sentencing court can have regard in the process of instinctive syntheses in coming to a sentence which is just in all the circumstances when sentencing him in the event that he is convicted, either upon his own plea or by a jury, of the charges presently before the Court. That he might have been convicted at an earlier time is hardly a good reason that he not face the prospect of conviction at all. 
63. [63]
    In considering whether there is any real and incurable unfairness, it may also be observed that the evidence in question, the existence of which he contends he should have been informed, is not evidence of which he could otherwise have had no knowledge.  The allegation is that he is the creator of the evidence.  If that is correct, he would have known the videos were on the devices. He knew that the devices were seized. He knew they had been analysed. 
64. [64]
    Furthermore, although the legal officer within the ODPP did not disclose the videos to the applicant’s lawyers, she did make their existence known to them and advised that they were available to be viewed upon request.  Seemingly, no such request was made.  Had the opportunity to view the material been taken up, the existence of that evidence would have become known to the applicant and his legal representatives.

65. [65]
    It should also be noted that the applicant contends that the charges currently before the court take a technically different form in terms of their wording to the earlier discontinued counts, but that they rely upon the same facts and the evidence that was in existence and in the possession of the prosecution at that earlier time.  The Crown does not accept that.  While conceding, potentially, some overlap in one former charge with one current charge, it contends that the conduct depicted in the videos appears different to that described by the applicant in his admissions to police.  The Crown demonstrates this by reference to features of the offending described by the applicant, such as Lucy looking at pornographic magazines as he did “the thing” with her, being absent from the video recordings.  Similarly, it points to features of the offences, such as the applicant masturbating and ejaculating on Lucy’s genitals, as depicted in the videos, as matters which the applicant did not refer to in his admissions, thus suggesting that they were different occasions of offending.  
66. [66]
    In Barac, Keane JA went on to say:

“It is also important to emphasise that, in this case, the DPP's decision to pursue charges of trafficking against the appellant was made on the footing of an honest judgment that the availability of new evidence of serious crime was sufficient to warrant a reversal of the previous decision.  Whether the strong public interest in the proper punishment of crime warranted the reversal of the earlier arrangement was a matter for decision by the DPP.  The decision to prosecute is a matter exclusively for the DPP as the prosecuting authority established by law for that purpose.  There is no occasion for a court to impede or interfere in the exercise of the prosecutorial function unless and until ‘[c]ourt processes are being employed for ulterior purposes or in such a way (for example, through multiple or successive proceedings) as to cause improper vexation and oppression’.^[12] There is no suggestion that the decision by the DPP in this case was made otherwise than in good faith …

Public confidence in the administration of justice might well be lessened to a greater degree by the DPP deciding to allow a criminal, whose guilt of serious crimes was now believed by the prosecuting authority to be demonstrable, to escape responsibility for his crimes than it would be lessened by a supine adherence to an agreement made at a time when necessary evidence was not available.”^[13]

67. [67]
    Again, his Honour’s observations are apposite here.  The Crown has undertaken not to rely upon the applicant’s earlier guilty pleas or any admissions made by the applicant himself or by his lawyers on his behalf.  In my view, the continued prosecution of the current charges will not operate to cause the applicant improper vexation or oppression against him. His trial can be conducted fairly.
68. [68]
    The public interest in pursuing serious criminal charges of sexual offending against a child is very strong.  Public confidence in the administration of justice is more likely to be eroded than enhanced should the indictment be stayed and the prosecution halted. 
69. [69]
    For these reasons, the application for a stay should be refused.