R v HJR[2022] QDCPR 13

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application for the permanent stay of an indictment charging the applicant with two counts of indecent treatment of a child under 16 under 12 who is a lineal descendant and one count of rape. The complainant in the current indictment I will refer to as ABC. He is the applicant’s biological grandson.
2. [2]
   The basis of the application is that the further prosecution of the applicant on the current indictment is an abuse of process^[1].
3. [3]
   For the reasons that follow, my decision is that the application should be allowed and the indictment should be permanently stayed. 

Background

4. [4]
   On 14 January 2014 ABC and his older brother (who I will call XYZ) gave statements to the police pursuant to s 93A of the Evidence Act. At that time, ABC was 13 years old and XYZ was 15 years old.
5. [5]
   The statements related, in substantial part, to alleged offending that occurred in 2009 whilst they were in the applicant’s care over a weekend.
6. [6]
   XYZ disclosed witnessing anal penetration of ABC with a blue dildo by the applicant. ABC did not make a disclosure of this. Count 2 on the current indictment is said to relate to this alleged incident.
7. [7]
   XYZ disclosed witnessing the applicant masturbating the complainant. Again, ABC did not make such a disclosure. Count 3 on the current indictment is said to relate to this alleged incident.
8. [8]
   Count 1 on the current indictment is a count of indecent treatment alleged to have been committed against ABC by the applicant on a different occasion, in a different location in the year from 8 April 2008 – 9 April 2009. It appears that in the interview with XYZ on 14 January 2014 he said he witnessed some such conduct, although, again, ABC did not make any complaint of this kind to the police in 2014.
9. [9]
   Consequent upon those two s 93A statements the applicant was charged on 14 March 2014 with six counts of indecent treatment of a child. Five of the counts relate to aspects of the conduct of the applicant over the particular weekend. Police did not charge the applicant with rape of ABC.
10. [10]
    Q Prime records contain an entry: “no charge of rape have been laid due to lack of particularisation provide by victims.” 
11. [11]
    The DPP had carriage of the prosecting both at committal and in the District Court. At no stage was any addendum statement sought in relation to the potential allegations.  An indictment was presented on 15 August 2014 containing six counts of indecent treatment with circumstances of aggravation. The Crown chose not to act on the evidence of XYZ about what he witnessed occurring to ABC.
12. [12]
    The applicant pleaded guilty to the indictment on 18 February 2015, was sentenced on each count to 2 years imprisonment partially suspended after serving 8 months for an operational period of 3 years. As a consequence of his convictions he became a reportable offender for the following 5 years.
13. [13]
    ABC made a complaint of rape to police in July 2020 and provided two statements to police. One is dated 6 July 2020 and the other 28 August 2020. These allegations relate (largely) to the same time period as the first indictment.
14. [14]
    The applicant was arrested and charged on 7 September 2020.
15. [15]
    In his statement to police on 6 July 2020 ABC made the following disclosures:

    1. (a)
       He did not disclose the offending at the time because people might think he was gay;
    2. (b)
       The applicant was jerking him off when he had his sister in his arms and XYZ was on the floor watching TV or asleep. This was when he was eight years old and when they were living at a home in Springfield Lakes. His parents had gone out and the applicant stayed at the house to look after him and his siblings;
    3. (c)
       At the same time as the other offending he had earlier spoken to police about that happened at the Gold Coast, the applicant tried to shove a nude coloured vibrator in him. He was on the ground, naked and on all fours. The vibrator touched his cheeks and he said no and the applicant backed off. The applicant flipped him over onto his back. The applicant then put ABC’s penis in his mouth. XYZ was on the couch and saw what happened to him;
    4. (d)
       These were the only two things he did not report to the police at the time.  
16. [16]
    In his statement to the police on 28 August 2020 ABC disclosed:

    1. (a)
       The vibrator did penetrate him and what he had said on 6 July 2020 was not true;
    2. (b)
       He was made to retrieve the vibrator from the shower and found batteries for it;
    3. (c)
       He lay on the massage table fully naked on his stomach and his anus was penetrated;
    4. (d)
       He lay on the floor and the applicant tried to suck him off.
17. [17]
    XYZ made a further statement to police on 27 August 2020 in which he told police:

    1. (a)
       He was unsure whether his sister had been born;
    2. (b)
       ABC was lying next to the applicant on the couch;
    3. (c)
       He saw that the applicant had his hands down ABC’s pants, playing with his genitals;
    4. (d)
       He saw the applicant bend ABC over the massage table with his pants down but shirt still on. He saw the applicant penetrate ABC with his penis for a couple of minutes. 
18. [18]
    For completion I observe that Count 1 on the earlier indictment (to which the applicant pleaded guilty) was a count of indecent treatment where the complainant, who was then approximately 6 – 7 years old, was XYZ. That offending was alleged to have occurred sometime within the period 31 January – 26 December 2006, at Springfield Lakes. That is at least some 2.5 years prior to the alleged offending on the Gold Coast, which is the subject of the current charges.

Legal principles

19. [19]
    The Court has power to stay proceedings on indictment^[2]. The purpose for doing so is to prevent what would otherwise be an unfair trial and, or alternatively, to prevent the Court’s processes being abused^[3]. The power to ensure a fair trial is not a power to stop a trial before it starts; it is a power to mould the trial procedures to avoid or minimise prejudice to either party^[4].
20. [20]
    In Jago, Brennan J made the following observations about acting to prevent abuse of the Court’s process in a criminal proceeding^[5]:

“Abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings is, generally speaking, to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process.”

21. [21]
    Mason CJ and Toohey J observed in The Queen v Glennon^[6] that “a permanent stay will only be ordered in an extreme case and there must be a fundamental defect of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”^[7]. 
22. [22]
    In Walton v Gardiner ^[8] at 393 (citations and authorities omitted) the majority of the High Court stated that proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail, if the court is, in all the circumstances, a clearly inappropriate forum, or if the continuance of proceedings is unjustifiably vexations and oppressive as it is sought to litigate anew a case which has already been disposed of by earlier proceedings. Counsel for the applicant has also set out in her written outline the passage from the judgment of Justice Deane in Jago that 

"The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed."

23. [23]
    The applicant properly accepts that a stay of an indictment should only be ordered in rare and exceptional circumstances^[9] although our Court of Appeal has observed that these are not legal conditions^[10] and the discretion is to be exercised by the purpose to be served by its exercise^[11]. The Court of Appeal cited, amongst other authority, the passage from Petroulias v The Queen^[12] at [17] emphasising the passage that “The touchstone in every case is fairness. The power is to be exercised only in the most exceptional circumstances”.
24. [24]
    As the Court of Appeal noted in Wands at [65] the consequence of a permanent stay is that there will be no prosecution. After citing a passage from the judgment of Fitzgerald P in R v Johannsen and Chambers^[13], at [66] the Court observed that an important policy consideration balancing against the making of such an order is the desirability and “strong predisposition” to criminal trials proceeding to conclusion.
25. [25]
    Counsel for the applicant referred to R v Wentworth^[14] for support for the general proposition that an exercise of prosecutorial discretion not to pursue certain charges at an earlier point in time, with knowledge of potential other offences, is a relevant consideration, whilst readily accepting that on the facts in Wentworth, there was a negotiation between the Crown and the defence as to which charges the defendant was prepared to plead guilty to, and which charges the Crown would nolle, which does not arise here.
26. [26]
    Counsel for the Crown referred to R v C^[15] at [39] for support for that there is no authority for the proposition that the mere passing up of an earlier opportunity to proceed with a complaint as a basis for staying a proceeding.  Counsel accepted, however, that the factual circumstances of R v C, in which that observation was made, were markedly different, in that in that case the earlier charges of which the applicant for the stay had been convicted related to other complainants on other occasions. As such, it does not assist with the resolution of the current application.

Analysis

27. [27]
    The applicant pointed to a number of factors in support of the application for the permanent stay.
28. [28]
    Firstly, the prosecution had relevant material for each of the counts in the current indictment at the time of the first indictment. That can be found in the s 93A interview of XYZ. The focus of the oral argument was on the most serious count, the rape count.
29. [29]
    Acknowledging that the prosecution did not have disclosure from the complainant of penetration (Count 2 on the current indictment) the applicant contended it had evidence from a witness (being XYZ) and did not seek further evidence, rather making a decision to prosecute on evidence with knowledge of ABC’s evidence^[16]. Counsel submitted that there would have been an outcry if either the police or the prosecution services had tried to lead a complaint from the complainant arising out of his interview in 2014, but accepted there was no attempt in 2014 or 2015 to conduct any further interview with the complainant ABC.
30. [30]
    I observe that a significant portion of the s 93A interview which XYZ gave concerned the rape allegation: it is not an allegation which is only fleetingly mentioned. He articulated the offending when giving an overview of the events of the weekend^[17]. He then gave further details in response to specific questions at pages 14 and 15 of the interview.  ABC gave his interview prior to XYZ, so it is plain that the police conducting the interview with ABC were unaware of what XYZ would say. However, the interview of ABC ended with an open question from the police officer asking “…. Is there anything else I should know or anything else you want to” and ABC responding “No there’s nothing else”^[18]. Thus he has affirmatively said in 2014 that there was nothing else to disclose.
31. [31]
    The applicant further contended that the Crown had not grappled with the critical issue in the application which was the fact of successive prosecutions which could not be addressed through trial procedures such as directions in the form of “Robinson” or “Longman” directions.  Counsel submitted that by reason of the original complaint involving allegations of sexual assault against a child, the Director of Public Prosecutions (DPP) would have been involved in the matter from committal stage and was on notice of the relevant fact, that is, an allegation that ABC had been raped.  The decision by the QPS not to prosecute was continued or maintained by the DPP and no attempt to take any form of addendum statement was made.
32. [32]
    The Crown’s submission is that it had in 2020, for the first time, as new evidence, the complaint of the complainant and it was a complaint of a more serious nature than was originally made. As such, it was proper for the additional charges to proceed.
33. [33]
    Whilst I accept the Crown’s submission that this is, for the first time, information from the complainant, it is troubling that the complainant has given two fundamentally inconsistent accounts of what occurred in a seven week period. I observe that ABC was 13 when he was interviewed first by the police. That is a young age and some reluctance to disclose may be well understood. There is significantly more difficulty, however where, as an adult person he makes the allegations in his two statements, seven weeks apart, and they are fundamentally inconsistent on the issue of penetration. 
34. [34]
    The applicant contended it could be inferred from the outline of the Crown that the Crown accepted the Crown case was weak, where the Crown accepted there were fertile ground for cross-examination of the complainant who, as an adult, had given different versions of the account to police seven weeks apart. 
35. [35]
    I accept the applicant’s submission that there must be real issues about the strength of the prosecution’s case where, having finally determined some seven years after first speaking to the police to come forward, in a seven week period as an adult, the complainant gives such significantly different accounts of the alleged rape (being the most serious offence). 
36. [36]
    Secondly, the applicant decided to plead guilty based on the indictment and the schedule of facts^[19]. There may have been many reasons for the applicant doing so^[20] but the decision was made at the time the charges were proffered against the applicant and on the circumstances then prevailing. That flows into the third argument put by the applicant.
37. [37]
    Thirdly, the applicant contends any subsequent trial would be unfair, because the applicant is at significant risk of his previous convictions being led at a trial, where if all charges had been alleged at the same time, the advice given and the decision to plead would have been different, given the inconsistencies outlined in the evidence^[21].
38. [38]
    The Crown confirmed it intends to lead the fact of the convictions as evidence of sexual interest in ABC and that it is necessary for the content of the s 93A interviews to be able to be placed before the court so there can be effective cross-examination of the witnesses and the differing accounts. As I understood the oral submissions from the applicant, he too perceived it would be necessary to lead the evidence of the earlier counts and material behind it, as this was the only way a proper cross examination might be able to proceed.
39. [39]
    The consequence of the prosecution now, particularly where the Crown was seeking to lead convictions as evidence of sexual interest, means that the applicant, by his own plea, will be bolstering the Crown’s current case.  That is a matter which cannot be addressed by any modification of the trial process.  Whilst counsel for the applicant properly accepted that a no jury order for a trial could address some aspects of unfairness and further that there is no such thing as a perfect trial, counsel submitted it is impossible for the applicant to receive a fair trial because of the twin aspects of there being successive prosecutions arising out of the same incident, where relevant material was known to the prosecuting authorities and the fact the guilty plea now has the effect of bolstering the Crown’s case.
40. [40]
    Fourthly, if the matter proceeds and the applicant is convicted, he will receive a sentence which is greater than that which was originally imposed and the reportable offender requirement will restart for another five years^[22].
41. [41]
    Fifthly, the expectation of finality from a prosecution is one held by both the community and a defendant. The community interest is not met by successive prosecutions arising out of the same factual matrix^[23]. Counsel for the applicant submitted that, in abstract terms, if a course such as that proposed by the prosecution is adopted, there will be nothing to stop a complainant repeatedly complaining about offending over time which would produce difficulties in terms of the issues of finality of prosecution.  Counsel for the Crown submitted that police did not have the complete information and there is now new evidence in the form of a complaint by the complainant of penetration.  There is an interest in that being prosecuted which includes a community interest. 
42. [42]
    I have accepted that the prosecution case is weak by reason of the various inconsistencies in the accounts given by the complainant. There are further discrepancies, now, too, in the account given by XYZ.
43. [43]
    In addition to that in my view, the factors that:

    1. (a)
       If the current prosecution proceeds there will be successive prosecutions separated by many years arising out of the same factual scenario;
    2. (b)
       relevant material concerning each of the charges in the form of evidence from a witness, was known to the police and the prosecuting authorities at the time of the original charges being laid and no steps were taken to attempt to obtain any addendum from ABC;
    3. (c)
       the applicant pleaded guilty on the basis of the proffered charges. Those pleas will now be brought before the Court by the Crown on the subsequent prosecution and both parties accept it is necessary for this to occur to enable a proper cross examination of witnesses;
    4. (d)
       there is a real interest of the community and a defendant in finality arising from a prosecution

bring this particular matter within the circumstances identified by Deane J in Jago as potentially constituting an abuse of process.

44. [44]
    This combination of circumstances is one where, to my mind, the process of prosecution is incapable of serving the purpose it is intended to serve. To allow it to continue would constitute an abuse of the processes of the court.
45. [45]
    I will order that the proceeding be permanently stayed.