R v HWP[2025] QDCPR 31

DISTRICT COURT OF QUEENSLAND

1. [1]
   The defendant is charged on an indictment alleging two counts of rape.  Count 1 alleges that the offence occurred at Elliott Heads or elsewhere in the State of Queensland between 24 June 2022 and 17 September 2022.  Count 2 alleges that the offence occurred between 24 June 2022 and 31 December 2022 at Elliott Heads or elsewhere in the State of Queensland.  The defendant applies for a permanent stay of the indictment.
2. [2]
   The complainant girl is 13 years of age.  She was 10 years of age when the alleged offending occurred, and 11 years old when she provided her first section 93A statement.  The applicant defendant is the father of the complainant’s school friend. 
3. [3]
   In her first section 93A statement the complainant said she was swimming at a beach with her friend and the defendant.  They played a game where the girls sat on the defendant’s lap.  She alleged that the defendant touched her vagina with his hand under her swimsuit and wriggled his fingers around.  The complainant said the second offence occurred in exactly the same way as the first.  The alleged offences occurred the previous year. The complainant was questioned about the nature of the touching and specifically stated that the touching did not involve digital penetration of her vagina. 
4. [4]
   The defendant was originally charged in this court upon two counts of indecent treatment of a girl under 16 years.  The matter was listed for a pre-recording of the complainant’s evidence in this court in June 2024. 
5. [5]
   On 19 June 2024, the complainant watched her section 93A recording, and then conferred with the Crown prosecutor.  The Crown has provided the defendant with a conference note dated 19 June 2024, which records that the complainant watched the 93A video with a support person only present before the prosecutor returned with a legal officer.  The conference note records:

[The Crown Prosecutor] asked [Complainant] if she had watched her 93A. She said “Yes.”  [Crown Prosecutor] asked, “Now that she has watched it again, is there anything else she wanted to tell [Crown prosecutor]?

[Complainant] told [Crown prosecutor] that [defendant] did put his finger in her vagina.  That happened both times. [Complainant] knew the difference between the outside and inside of her vagina.  She explained the inside as where he touched – as being where the hole was.  She was not sure if it was one or more fingers, but thought probably one. [Complainant] agreed that in a police interview she was asked about whether it was inside her vagina and she said, ‘No’. [Complainant] explained that she knows more about her body now then she did then.  She is in high school now and was 10 when it happened and 11 when she spoke to police.

[Complainant] knew the word ‘vagina’ when she spoke to the police, she was not comfortable saying it.

[Complainant] said that what she told the police was the truth.

6. [6]
   The conference note continues to record conversations between the Crown prosecutor and the complainant about the timing of the alleged offences, the nature of her swimsuit, further detail of the alleged offences, and clarification of the detail of something said during her 93A interview.  The complainant was also asked about the terms of any preliminary complaint to the defendant’s daughter and her current relationship with the defendant’s daughter. 
7. [7]
   Following upon such conference, the Crown presented the current indictment charging two counts of rape.  The Crown intended leading evidence from the complainant during the pre-recording of what she had disclosed during conference of the digital penetration of her vagina.  Upon request by the defendant’s representatives for a further section 93A statement to be taken, the pre-recording was adjourned. 
8. [8]
   The complainant was subsequently interviewed by a police officer on 5 September 2024 and then again on 16 November 2024, essentially about the additional disclosure made during her conference with the Crown prosecutor. Indeed, the questioning on both occasions included reference to such conversation to the extent of the leading question of the complainant, that the complainant had told the Crown prosecutor that the defendant had put his finger in her vagina: transcript of 93A interview on 5 September 2024, page 3, line 50.  The complainant confirmed during the 93A interview on 5 September 2024 and 16 November 2024 not only that she had said such things to the Crown prosecutor during conference but they had in fact occurred and that the discrepancy between such facts and her initial statements to police on 19 April 2023 was explicable by her growing understanding of her genitalia through sexual education. 
9. [9]
   The defendant seeks a permanent stay of the indictment because of the circumstances arising from the conference with the complainant on 18 June 2024, and the subsequent questioning of the complainant by police on 5 September 2024 and 16 November 2024, and the refusal of the Crown prosecutor and the legal officer involved in the conference to provide statements as to what transpired during the conference on 19 June 2024.  The defendant refers to the fact that there is no recording, nor transcript, of the complainant’s disclosure of rapes during the conference, other than the conference note, which does not, on its face, fully detail all of the conversations.  The defendant submits that the notes of the conference indicate that the prosecutor likely asked questions which the complainant answered, but the questions are not recorded. The conference notes permit the defendant only a general sense of how the new disclosures arose.  Without a transcript or recording of the conference, the defence have been denied the opportunity to see and hear the witness give the additional evidence.  Given the refusal by the Crown prosecutor and the legal officer to provide witness statements, the defendant is unable to properly explore the circumstances in which the further disclosures were made.  The defendant submits that, upon the initial disclosure of a digital penetration by the complainant, that the Crown prosecutor should have given immediate consideration to ceasing the conference and arranging the section 93A interview of the complainant.  The failure by the Crown to do so means that the Crown prosecutor, effectively, became an investigator.  The defendant cannot investigate exactly how the questioning by the Crown prosecutor elicited answers of the complainant during the conference. In the circumstances, there is irreparable prejudice to the defendant by reason of how the investigative process of the offences of rape proceeded.  Such defect cannot be cured by direction, and should result in a permanent stay of the indictment. 
10. [10]
    A permanent stay is an exceptional remedy and should only be ordered where there is a fundamental defect which goes to the root of the trial, such that nothing otherwise can be done by the court to relieve against the unfairness of a trial.  The issue to be determined is whether the continued prosecution of the defendant will result in such unfairness as to be an abuse of process of the court.  In Jago v District Court (NSW) (1989) 168 CLR 23 at 33, Mason CJ said: 

The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial. 

11. [11]
    In Jago, at 59, Deane J said: 

… default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one.

12. [12]
    In the circumstances of this case, there was, of course, nothing improper in the fact that a conference occurred between the Crown prosecutor and the complainant prior to the anticipated pre-recording of the complainant’s evidence in this court.  Such a process is not only a proper one, but a desirable one.  I do not consider that there was any impropriety in the Crown prosecutor continuing to confer with the complainant after such initial disclosure of rapes, rather than terminating such conference for the purposes of a further section 93A interview by police.  The Crown prosecutor was aware that notes were being made by the legal officer, which, ultimately, base the conference notes subsequently disclosed to the defendant.  I do not see that there was any impropriety in the Crown’s initial decision to lead such further evidence at the pre-recording of the complainant’s evidence. 
13. [13]
    The fact that the complainant was subsequently interviewed by police after an application by the defendant for an adjournment of the pre-recording does not, consequently, result in any impropriety on the part of the Crown or police in the investigation of the offences of rape, or in such unfairness to the defendant that would justify a permanent stay of the indictment;  neither does the refusal by the Crown prosecutor and the legal officer to provide statements provide any basis for a stay. 
14. [14]
    The jury will be well aware as to the inconsistency between the complainant’s initial disclosures, which fell short of allegations of rape, and the evidence that was subsequently attained during the later section 93A interviews, and any evidence she will give in court as to those offences. 
15. [15]
    The complainant can be cross-examined during her pre-recorded evidence about such inconsistency. The jury can be appropriately directed as to the significance of any such inconsistency, both as to the complainant’s credibility generally, and the caution that the jury might exercise in considering the charges of rape.  I would expect that, in the circumstances, a trial judge would consider that the alternative verdicts of indecent treatment would properly be left for the jury’s consideration.
16. [16]
    Ultimately, I am not satisfied, having taken into account all circumstances, that they justify the exceptional remedy of a permanent stay of the indictment. 
17. [17]
    The defendant did not strongly press the alternative basis for a stay of the indictment being a temporary stay until such time as the prosecution indicated it would call the defendant’s daughter as a witness in the trial. 
18. [18]
    The defendant’s daughter participated in a section 93A interview with the police on 24 April 2023, and a conference with the Crown prosecutor on 18 June 2024. As a result of inconsistencies between what the witness had said during her police interview and what she said during the conference, particularly after being questioned as to apparent inconsistencies, the Crown prosecutor formed the view that the witness was not a witness desirous of telling the truth, and would not be called by the Crown.
19. [19]
    I have not been asked or required, ultimately, to rule upon the reasonableness of such a conclusion on the part of the Crown prosecutor, defence counsel having indicated that might be a matter, perhaps, raised on a further pre-trial hearing.  It seems to me that that is a sensible concession, given the fact that a temporary stay would be tantamount to a direction to the Crown to call a witness, a course not open to the court, according to the High Court authority of Apostilides:  see the reasoning of Crow J in R v Green [2023] QSCPR 12 at [52] to [59]. 
20. [20]
    Suffice it to say that the present indication by the Crown that they will not call such a witness does not provide any proper basis for a stay of the indictment. 
21. [21]
    The defendant’s application for a stay of the indictment is refused.