New South Wales Court of Criminal Appeal CITATION : Regina v F.M.D. [2002] NSWCCA 14 FILE NUMBER(S) : CCA 60205/00 HEARING DATE(S) : 4 February 2002 JUDGMENT DATE : 14 February 2002 PARTIES : Regina F.M.D. JUDGMENT OF : Wood CJ at CL at 1; Sully J at 2; Dowd J at 40 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 94/11/1152 LOWER COURT JUDICIAL Stewart ADCJ OFFICER : COUNSEL : R. Hulme - Crown J. Stratton - Respondent SOLICITORS : S. E. O'Connor - Crown D. J. Humphreys - Respondent LEGISLATION CITED : Crimes Act 1900 (NSW) Jago v District Court (NSW) (1989) 168 CLR 23 CASES CITED: Walton v Gardiner (1993) 177 CLR 378 Reg v Nicholson (1998) 102 A Crim R 459 House v The King (1936) 55 CLR 499 at 504 DECISION : Order of District Court affirmed. - 9 -IN THE COURT OF CRIMINAL APPEAL 60205/00 WOOD CJ at CL SULLY J DOWD J Thursday 14 February 2002 regina V f.m.d Judgment 1 WOOD CJ at CL: I have read the draft of the reasons for judgment of Sully J and agree both with those reasons and with the order proposed. 2 SULLY J: This is a Crown appeal against an interlocutory judgment of his Honour Acting Judge Stewart QC given in the District Court on 3 March 2000. His Honour's order stays permanently proceedings then pending in the District Court against the present respondent F.M.D. Those proceedings were criminal proceedings brought upon an indictment charging the respondent with five offences, each of which involved an element of sexual misconduct on his part towards a particular named complainant. One of the offences thus charged was an offence of inciting the complainant, then being a person under the age of 16 years, to an act of indecency towards him, the respondent. The remaining four charges all alleged sexual intercourse with the same complainant. Two of those four charges alleged sexual intercourse in circumstances of aggravation knowing that the complainant was not consenting. The remaining two of those four charges were laid in the alternative and charged sexual assault with a complainant who was at the material time above the age of 10 years and under the age of 16 years. The act constituting sexual intercourse was, in one case, an act of digital penetration; and in the other case, an act of penetration with a bottle. It goes without saying that all of the charges thus preferred against the respondent were charges of serious criminal misconduct; and that there is a clear and legitimate public interest in bringing those charges promptly to trial in order that justice may be done, and may be seen to be done, in connection with them. 3 The offences as charged were allegedly committed on or about 3 January 1994. The respondent was arrested on 20 January 1994. At that time one H.A.B, also, was arrested. She was charged, put simply, of having been a co-offender with the respondent. 4 On 2 November 1994 both the respondent and H.A.B were committed for trial at the Sydney District Court on 2 December 1994. 5 On 2 December 1994 both the respondent and H.A.B were arraigned in the District Court. Each pleaded not guilty to the charges preferred respectively against them. There was some indication by the then representative of the Crown that there would be alterations to the indictment. The trial of both accused was stood over, accordingly, to 2 March 1995 for the fixing of a trial date. 6 On 2 March 1995 a problem arose as to the granting of legal aid; and the proceedings were stood over until 7 April 1995. 7 Thereafter, and until 4 May 1995, there were several mentions in the District Court in connection with various interlocutory matters relevant to the forthcoming trial of the respondent and of H.A.B. 8 On 4 May 1995 the trial of both accused was set down for 6 November 1995. It was estimated that the trial would last for five days. 9 Thereafter, and until 6 November 1995 there were various further mentions of the proceedings, directed to returns of subpoenas and matters of the kind. 10 On 6 November 1995 the trial of the respondent and of H.A.B was listed for hearing. The trial could not be reached on that day. It was stood over for trial on 15 July 1996. 11 On 15 July 1996 an application was made for a permanent stay. There was some argument upon a question arising under section 409B of the Crimes Act 1900 (NSW). It seems to have been intimated to the Court on this occasion that there would be an application by both accused that no bill be found against them. The trial was stood over to 16 July 1996. 12 On 16 July 1996 the trial was listed for hearing. Once again the trial could not be reached in the Court list. The trial was stood over to the first call-over date after 9 September 1996; and orders were made that on the next occasion the trial should be listed early so that the trial Judge could hear an application pursuant to section 409B of the Crimes Act, and an application for a permanent stay. 13 On 31 October 1996 the trial was fixed for hearing on 11 August 1997. It was estimated that the trial would last for two weeks. 14 On 11 August 1997 the trial of the respondent and of H.A.B was listed for hearing. H.A.B, who had previously pleaded not guilty to the charges preferred against her, changed her plea to one of guilty of having aided and abetted an aggravated sexual assault. Her matter was thereupon stood over to 19 September 1997; and the trial of the respondent was stood over to the call-over on 28 August 1997. 15 On 28 August 1997 the trial of the respondent was fixed for 29 June 1998. It was estimated that the trial would occupy two weeks. On 19 September 1997, and on 10 October 1997, sentence proceedings in the matter of H.A.B were heard by his Honour Judge Patten. The result was a 3 year good behaviour bond conditioned, relevantly, upon H.A.B's giving evidence for the Crown, as she had indicated a willingness to do, in the trial of the present respondent. 16 On 29 June 1998 the respondent's trial was listed for hearing. Counsel then appearing for the respondent applied for an adjournment. The Crown opposed the application, but it was granted, and the trial was stood over to 2 pm on 2 July 1998. 17 On 2 July 1998 the respondent's trial was further stood over for, as it would seem, the return of a number of subpoenas issued by the respondent's then representatives. 18 Between 13 July 1998 and 20 August 1998 there were various appearances in connection with various interlocutory matters. 19 On 20 August 1998 the respondent's trial was listed for the purpose of fixing a further trial date. A trial date was fixed for 1 March 1999. It was estimated that the trial would occupy three weeks. 20 On 1 March 1999 the respondent's trial was listed for hearing. It was stood over until 2 March 1999. On 2 March 1999 the respondent's trial commenced and continued until 4 March 1999 when the jury was discharged because of a non-responsive answer given by the complainant during the course of her evidence. The trial was stood over until 8 March 1999. 21 On 8 March 1999 the respondent's trial re-commenced. It continued until 1 April 1999 when the jury was discharged, having failed to agree upon a verdict. The re-trial of the respondent was stood over to 23 April 1999 for the purpose of fixing a further trial date. 22 On 23 April 1999 a fresh trial date of 7 February 2000 was fixed. It was estimated that the new trial would take five weeks. 23 On 7 February 2000 the respondent's re-trial commenced before his Honour Acting Judge Stewart QC. A jury was empanelled and the trial commenced. During the course of the day one of the members of the jury apparently indicated a need to be excused. The juror was excused accordingly; and in those circumstances the entire jury was discharged and a fresh jury empanelled. 24 The trial with the second jury commenced, and continued until 11 February. On that day the jury was discharged. The reason for the discharge was that H.A.B, whom the Crown had been intending to call as a witness in its case, was unfit to give evidence. The Crown prosecutor then appearing informed the Court that he could not give any undertaking as to when H.A.B might be fit to give evidence. 25 On 14 February 2000 the application for a permanent stay, which application gave rise to the interlocutory judgment now under appeal, was lodged. 26 At the hearing of the present appeal, the Court was informed that were the appeal to be upheld, the respondent could be brought to trial, in all probability, by May, or thereabouts, of this year. That would entail a lapse of some 7-1/2 years between the date of committal for trial, and the date of commencement of the trial proper. This is, on any reasonable reckoning, an inordinate delay in the bringing of the respondent to trial. It is a matter of well settled principle that such a delay, although deplorable, is not of itself a proper basis for the ordering of a permanent stay of the proposed re-trial of the respondent: see Jago v District Court (NSW) (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378; and Reg v Nicholson (1998) 102 A Crim R 459. 27 The respondent submits that, in addition to the element of lengthy delay, he is prejudiced by reason of the fact that two pieces of evidence, which he alleges to be of significance in the proper presentation of his defence to the charges preferred against him, have been destroyed. In that connection it is necessary to understand that part of the Crown case against the respondent alleges that the respondent and H.A.B took the complainant to a particular place in which the respondent photographed with a camera the complainant, without her consent, in various compromising poses. The building in which this activity is said to have taken place was demolished very shortly after the alleged relevant date in 1994. The camera allegedly used was, as it would seem, returned by the investigating police to the complainant who destroyed it. 28 The respondent submits that the destruction of the building has entailed that he is prejudiced in that it is not now possible to test by reference to the physical structure and layout of the building, the particular allegations as to place and related circumstances, made by the complainant. The respondent submits that the destruction of the camera, also, deprives him of access to a piece of primary evidence, the condition of which would have enabled him to dispute plausibly the version expected to be given by the complainant. 29 It is, of course, greatly to be regretted that these two pieces of physical evidence have been destroyed. The damage done to the respondent's putative case is, so far as concerns the camera, not entirely irremediable, in that there exist, as it would seem, photographs of the camera from which there can be established sufficiently for the respondent's intended purposes the dimensions, nature, and at least some of the other relevant characteristics, of the camera. It is not possible, as the evidence before this Court stands, to form a reliable view about the real prejudice, if any, that has been occasioned to the proposed defence by reason of the destruction of the building, particularly having regard to his assertion that the camera was not in working order at the relevant time. 30 The destruction of these two pieces of physical evidence is not, in my opinion, of itself sufficient to support the granting of a permanent stay of the proposed re-trial of the respondent. 31 Of much greater significance for present purposes is, in my opinion, the present position, in so far as it is possible to form a confident view about it, of H.A.B. It seems to be the case that she is a person with significant psychological problems; and, on that account, emotionally volatile. Stewart ADCJ speaks in his Honour's judgment of aspects of this condition as his Honour noted them on 11 February 2000: 32 "………………….. (I)t became very clear that she was considerably disturbed and disturbing. Sheriff's officers had to be called to the café on the ground floor of the Downing Centre where she was screaming abuse, some of which was aimed at the Crown, and some of which was aimed at no-one in particular. 33 This was told to me from the Bar table by the Crown Prosecutor, and the matter was reported to me by the Sheriff's officers themselves. In any event, I heard the disturbance myself from where I sit now in this court-room before the matter was adjourned on that day and the jury discharged because the case could not continue. ……………….." 34 As matters stand, and as I understand the fact, the Crown is still not in a position to say with finality whether or not it will be in a position to call H.A.B at any re-trial of the respondent. The Crown case against the respondent will be, in the nature of things, weakened should it prove to be the case that she is not available to be called as a Crown witness at trial. 35 There is, however, a further aspect to this uncertainty about the availability of H.A.B as a Crown witness at the proposed re-trial. In the normal course of events the complainant herself would be called by the Crown before H.A.B was called to give evidence. It was submitted by learned counsel for the respondent, and in my opinion with real force, that the conduct of the respondent's case at any re-trial would entail the cross-examination of the complainant, herself apparently a person with some psychological problems, in a way that might well require to be structured quite differently were it known that H.A.B was certainly available to give evidence in accordance with the proof that she has provided to the Crown; as compared with the way in which such cross-examination would need to be structured in the event that the Crown was not in a position to call H.A.B in its case against the respondent. 36 There seems to me to be real force in this submission. By the time of any re-trial, the alleged offences will be some 7-1/2 years old. That is not, as these things go, an impossibly long time; but it is a substantial time. The structuring of a defence attack upon the credibility and the reliability of the complainant in connection with events that are 7-1/2 years old must be significantly influenced, in the nature of things, by the availability or the non-availability of the corroboration which can be given in the form of credible evidence led from H.A.B. It seems to me to be fundamentally unfair that the respondent should be left, as it were, in a condition of forensic suspense while the Crown comes to a settled view as to whether or not H.A.B will be fit to give evidence and to be called in fact in the Crown case. It is no answer to that problem to say, as was put to this Court by learned counsel for the appellant that the Crown is resolved to proceed to a re-trial whether or not H.A.B is available as a Crown witness. That is merely to re-state, rather than to resolve, the problem. 37 The submissions put by learned counsel for the respondent stress, and in my opinion correctly, that Stewart ADCJ, in making the order now subject to appeal, was exercising a judicial discretion; and that this Court is not justified in interfering with that discretion unless it can be demonstrated by the present appellant that the primary discretion miscarried in the sense explained by the well known exposition of the relevant law given by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504. 38 It was submitted for the appellant that the relevant discretion of Stewart ADCJ had miscarried by reason of an inappropriate reliance by his Honour upon the process of reasoning that underpins the decision of this Court, (Smart, Grove and McInerney JJ), in Nicholson (supra). It is true that Stewart ADCJ referred extensively to, in particular, the principal judgment, which was given by Smart J, in that case. It does not follow, in my opinion, that Stewart ADCJ, upon a fair reading of his Honour's judgment, can be said to have transposed indiscriminately the reasoning in Nicholson to the different facts of the present particular case. The principles enunciated in Nicholson are not, when all is said and done, controversial. They acknowledge and follow clear and well settled statements of principle in decisions of the High Court of Australia. It is the application of those uncontroversial principles that is the contentious issue in the present appeal; just as it was the contentious issue in Nicholson itself. 39 I have come to the conclusion that the stay order made by Stewart ADCJ cannot be characterised properly as a miscarriage of his Honour's relevant discretion. It is not, in my opinion, useful to embark upon a minute analysis, this way and that, of blameworthiness, whether on the part of the Crown, of the respondent, or of the District Court administration, in connection with the events that have happened. The question for present decision is whether those events, having in fact happened, have given rise to a situation in which it would not be fair to expose the respondent to the re-trial that the Crown now seeks. I have come to the conclusion that, in that connection, the result reached by Stewart ADCJ has not been shown to be such as this Court should now reverse it in the proper application of the principles established by the decision in House (supra). It might very well be that the factors of which I have hitherto spoken: inordinate delays; the destruction of relevant physical evidence; and the frustrating ambiguity about the status of H.A.B as an available Crown witness; would not justify, if taken individually in isolation and rigorously analysed, a permanent stay of the kind ordered in the District Court. But that is not the test. The test is whether all of those elements taken in combination are such as to entail an unacceptable unfairness in now bringing the respondent to trial before a fourth jury. 40 Stewart ADCJ concluded that it would be unacceptably unfair to the respondent to permit such a proceeding. I am of the opinion that it cannot be said that his Honour fell into error in reaching that conclusion. 41 For the whole of the foregoing reasons, I am of the opinion that the order of the District Court should be affirmed. 42 DOWD J: I have read the draft judgment of Sully J. I agree with the reasons and the order proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.