REGINA v LITTLER [2001] NSWCCA 173

Reported Decision : 120 A Crim R 512

New South Wales Court of Criminal Appeal

CITATION : REGINA v LITTLER [2001] NSWCCA 173 FILE NUMBER(S) : CCA 60144/01 HEARING DATE(S) : 7 May 2001, 11 May 2001, 16 May 2001 JUDGMENT DATE : 4 June 2001

Regina

PARTIES : v

John Aloysius Littler JUDGMENT OF : Hodgson JA at 1; Greg James J at 13; Adams J at 21

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0330 LOWER COURT JUDICIAL Maguire DCJ OFFICER :

COUNSEL : Mr M C Marien (Crown) Mr Greg Walsh (Solicitor) (Applicant) SOLICITORS : S E O'Connor (Crown) Greg Walsh & Co (Applicant) CATCHWORDS : Stay of proceedings - alleged offences occurred 38 to 46 years before trial - applicant 74 years old in ill health - long and short term memory problems - whether relevant if normal - directions not capable of ensuring fair trial - stay granted Jago v District Court of NSW & others 168 CLR 23 Longman and The Queen (1980 168 CLR 79 Crampton v The Queen [2000] HCA 60 (23 November 2000) R v George Adler (unreported, NSWCCA 11 June 1992) CASES CITED: R v Anthony Richard Goldberg (unreported, NSWCCA 23 February 1993) R v Helmling (unreported, NSWCCA 11 November 1993) R v McCarthy (unreported, NSWCCA 12 August 1994) R v Tolmie (unreported, NSWCCA 7 December 1994) R v Stringer [2000] NSWCCA 293 (10 August 2000) R v Tillott (1995) 38 NSWLR 1 DECISION : Leave to appeal granted, the appeal upheld and further proceedings on the indictments be permanently stayed.

IN THE COURT OF CRIMINAL APPEAL 60144/01 HODGSON JA GREG JAMES J ADAMS J MONDAY 4 JUNE 2001 REGINA v John Aloysius LITTLER JUDGMENT 1 HODGSON JA: The circumstances surrounding this application are set out in the judgment of Adams J. I agree with Adams J that there were errors in the way that the primary judge dealt with the medical evidence, although I would characterise the errors slightly differently. 2 Although the evidence of Dr. Langluddecke and Dr. Westmore was plainly against the view that the applicant was unfit to be tried, this evidence was not, as suggested by the judgment of the primary judge, plainly against the view that his health and memory were such that a trial would be unfair. As Adams J has shown, in some respects their evidence tended to support such a view. 3 In my opinion also, the trial judge too readily equated the applicant's ability to remember significant features of his life history with ability to remember matters relevant to a defence of these charges. As Adams J points out, if the applicant is guilty he could be expected to remember the alleged events as significant features of his life, but if he is not guilty (as presently presumed) then matters relevant to a defence of the charges would not be significant features of his life. And the primary judge's statement that Dr. Westmore "clearly ... did not believe" the applicant's claim of lack of memory is not in my opinion supported by Dr. Westmore's evidence. At the close of his oral evidence, Dr. Westmore accepted that there had been no deliberate obfuscation or deliberate misleading by the applicant. 4 Accordingly, I agree that this Court should consider for itself whether a permanent stay should be granted. 5 As shown by Jago v District Court of New South Wales (1989) 168 CLR 23, a permanent stay is a remedy of last resort, only used in most exceptional circumstances, where any trial would involve such oppressive unfairness, incapable of being overcome, that it would be an abuse of process. 6 In my opinion, an applicant for such an extraordinary remedy bears a heavy onus, and, if not unfit for trial, should normally be prepared to state on oath what he or she says would be the particular difficulties he or she would face in dealing with a trial of the charges brought. 7 In expressing this opinion in relation to this application, I have regard not only to the public interest in having a determination of the guilt or innocence of a person charged with serious offences, but also the interests of persons claiming to have been severely damaged by the alleged actions of the applicant. These actions, if they occurred, would have been done in circumstances where early detection was unlikely, and where there was a real possibility that complainants may be willing and able to bring complaints only many years later. In this case, complainants have now come forward, and made statements which, if true, both indicate most serious and damaging criminal activity and also make it understandable why there has been so much delay, at least until 1994. For myself, I would feel a sense of injustice to complainants such as these if a person charged with such offences could apply for and obtain a permanent stay, on the grounds such as those relied on in this case, without going so far as to state on oath what he says are his difficulties in dealing with the allegations. 8 I note that where such an affidavit is put on, and the application for stay is refused, the affidavit would be material which could be used against the applicant at a trial, subject to discretionary considerations. However, in my opinion, an applicant would not have to submit to cross-examination on the affidavit in the application, unless he or she elected to do so. If the affidavit were not permitted to be read without cross-examination, in my opinion it could be tendered as an exhibit, both as hearsay admissible in an interlocutory application, and also as direct evidence of what the applicant is prepared to say on oath and could, if he or she chose, say on oath at any subsequent trial. Of course, the applicant could choose to be cross-examined, and depending on what happened, this could add to or detract from the effect of the affidavit. 9 Before judgment was given in this case, I conveyed views along these lines to the parties, and the applicant sought an opportunity to put on such an affidavit. That opportunity was granted, for the reason that the desirability of such affidavit had apparently not previously been articulated in this way. The affidavit was filed, and sought to be read without cross-examination. The Crown did not oppose receipt of the material to assist this Court in deciding what course to take, if this Court were first of the view that error was shown. 10 The affidavit did in my opinion confirm the memory and other difficulties discussed by Adams J. Despite the lack of cross-examination, in my view it does carry some weight: the applicant has put himself on oath as to a position to which he would be committed if a stay were refused. 11 With the assistance of that affidavit, I am of the view that the grounds for a permanent stay expressed by Adams J are made out. 12 I would also add that I do not agree with the view of the primary judge that there have been no delays since 1994 that would justify criticism of the prosecuting authorities. R v Tillott (1995) 38 NSWLR 1 was decided on 1st September 1995; and accordingly I find it difficult to understand how it was that the prosecuting authorities proceeded to commence committal proceedings in November 1996 without disclosing that a number of complainants/witnesses had been subjected to the EMDR procedure, apparently intending to call their evidence in disregard of the decision in that case. That caused a delay, which in my view does justify criticism of the prosecuting authorities. 13 GREG JAMES J: I have had the advantage of reading the judgments of Adams, J and Hodgson, JA in draft. 14 Adams, J has set out the circumstances of the appeal. I agree with the orders he proposes and his reasons. 15 Further, I agree with Hodgson, JA that the medical evidence was far from ruling out that a trial would be unfair. On the grounds to which each of their Honours refers, I agree that the trial judge erred and that it falls to this court to determine whether stays should be granted. 16 For the reasons he has given, I agree with Hodgson, JA. that on an application of this kind, sworn evidence from the applicant, at least to the effect he has referred to, should be given. 17 That evidence having been given here, I join with the other members of the court in agreeing that the stays sought should be ordered. 18 For myself, I would add that the circumstances of the case are so unusual, the time since the events so long, and the applicant's prospects, as proved by the evidence, of remembering so doubtful, that I an unable to propose a direction which would enable a fair trial to be had. 19 Such a direction, in this case, would, in my view, need to meet more than the requirements posed by the judgments of Gaudron, Gummow and Callinan, JJ. In Crampton v. The Queen [2000] HCA 60 (23 November 2000) at paragraph 45. Adams, J cites the relevant passage which I need not here repeat. 20 Trials as were here indicated in which, after so many years, each complainant is called, without any other evidence which might reflect upon the credibility of his account, and in which the accused is affected by the problems, the evidence here shows he is affected by, would, in my view, be unfair. What could the accused use to test that evidence after so long, if he were not guilty? All he could do would be, as he has here, to assert his lack of memory and a general denial. What direction could then be given which would ensure the jury could give appropriate regard to the handicaps to proper appreciation of the accused's position? Since, in my view, there is no appropriate solution to the difficulties answering these questions exposes the trials should be stayed. 21 ADAMS J: In June 1996 the applicant was charged with sexual assaults in respect of a number of complainants including, in particular, William Hurst and Wayne Merry. Committal proceedings commenced in November 1996. After several interruptions, he was committed for trial on 13 April 1997. One cause of delay was the failure of the prosecution to provide details of EMDR therapy undertaken by a number of the complainants. Another delay arose from the need for the applicant to undergo heart surgery. Two indictments were ultimately preferred against the applicant who moved in the District Court for a permanent stay in respect of all charges. The application was heard by Maguire DCJ who, on 28 February 2001, stayed a number of counts but declined to stay those relating to Messrs Merry and Hurst. The applicant seeks leave to appeal in this Court from that part of his Honour's judgment declining to grant a stay 22 So far as Mr Merry is concerned, the indictment alleges a single offence committed between 1 January and 31 December 1963 when he was 11 years of age whilst, in respect of Mr Hurst, a separate indictment (thus requiring a separate trial) alleges five offences, of which one occurred between 1 January 1955 and 31 December 1955, two between 1 September and 31 December 1957 and two between 1 May and 30 September 1958, when he was 11 years of age. Taken together, the applicant is to face trial for offences allegedly occurring between thirty eight and forty six years ago. The applicant is now aged seventy four years and is in ill health. 23 Although, as I have said, only one count of the relevant indictment alleges an indecent assault by the applicant against Mr Merry, the complainant's statement to the police, which was made on 14 May 1994, alleged that assaults, involving the applicant masturbating himself and causing Mr Merry to masturbate him to the point of ejaculation in the applicant's bed at the Westmead Boys' Home, occurred some ten to fifteen times. Since one count in the indictment can refer to one offence only, the Crown will ultimately have to select which of the alleged acts of indecency is to be the subject of arraignment and plea, in respect of which the jury will need to be satisfied beyond reasonable doubt before it convicts. Without such particularisation, it is clear that the applicant cannot plead to the indictment. This issue was not raised before his Honour, so far as I can see. Certainly, his Honour did not advert to it. However, the fact that the Crown must identify the particular indecent act which is alleged against the applicant focuses attention on the problem raised by the alleged shortcomings in the applicant's memory of events that occurred so long ago. 24 It was submitted that the great delay between the dates upon which it is alleged the offences (whatever they were) allegedly occurred and the applicant's trial has resulted in such prejudice that a fair trial cannot be conducted. This prejudice falls into three main classes. The first concerns the unavailability of numerous potential witnesses who are dead, demented or unable to be identified. Related to this issue, of course, is the undoubted fact that such of these witnesses who might have been able to give relevant evidence at one time might very well now not be able to do so for failure of recollection caused simply by the lapse of time and ordinary human fragility. A lengthy list of Marist Brothers who were on the staff of the Home at the relevant time together with the names of various other persons who worked there in various capacities, was supplied to Maguire DCJ. His Honour accepted that most of these potential witnesses were dead, mentally incapacitated or unable to be located. Of course, any properly conducted police investigation should have thrown up the names of possibly material witnesses and attempts should have been made to locate them in light of the possibility that relevant evidence material to the issues in the case might have been discovered. The mere fact, if it occurred, that this evidence might assist the defence of course, should have been irrelevant. The statements of both complainants in this case are noteworthy for the omission of any mention of staff members or friends with whom, it seems reasonable to suppose, they had communications of greater or lesser intimacy. So far as the Crown case is concerned, it is for all practical purposes entirely focused upon the evidence of the complainants, lacking any supporting evidence, let alone corroboration.