Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v RD [2016] NSWCCA 84 Hearing dates: 10 February 2016 Date of orders: 10 May 2016 Decision date: 10 May 2016 Before: Bathurst CJ at [1]; Johnson J at [75]; R S Hulme AJ at [76] Decision: (1) Appeal allowed. (2) Set aside the order made by the trial judge permanently staying the proceedings. Catchwords: CRIMINAL LAW – appeal – criminal procedure – permanent stay – sexual assault – delay in bringing proceedings – whether primary judge misapprehended intended use of Crown evidence – whether appropriate direction could overcome prejudice Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F Criminal Procedure Act 1986 (NSW), s 130A Evidence Act 1995 (NSW), ss 65, 135, 137, 192A Cases Cited: Calleija v The Queen [2012] NSACCA 37; 223 A Crim R 39 Dupas v The Queen [2010] HCA 20; 241 CLR 237 House v The King [1936] HCA 40; 55 CLR 499 Jago v District Court of NSW [1989] HCA 46; 168 CLR 23 KH v R [2014] NSWCCA 294 Moeavo v Department of Labour [1980] 1 NZLR 464 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 R v BD (1997) 94 A Crim R 131 R v Edwards [2009] HCA 20; 255 ALR 399 R v Gilham [2007] NSWSC 231; 190 A Crim R 303 R v Glennon [1992] HCA 16; 173 CLR 592 Walton v Gardiner [1993] HCA 77; 177 CLR 378 Webb v The Queen [2012] NSWCCA 216; (2012) 225 A Crim R 550 X7 v The Queen [2014] NSWCCA 273 Category: Principal judgment Parties: Crown (Appellant) RD (Respondent) Representation: Counsel: J Pickering SC (Appellant) H White (Respondent) Solicitors: Solicitor for Public Prosecutions (Appellant) Watsons Solicitors & Barristers (Respondent) File Number(s): 2013/160724 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 1 September 2015 Before: Sweeney DCJ File Number(s): 2013/00160724 HEADNOTE [This headnote is not to be read as part of the judgment] On 6 July 2015, RD (the respondent) was charged with having sexual intercourse with SM (the complainant) without her consent. The offence was alleged to have occurred on 9 October 1997 and was reported by the complainant the following day. On 15 October 1997, the respondent participated in a recorded interview with police (the 1997 interview), in which he denied the allegations. The respondent was first charged with the offence in May 2013. When the trial commenced in July 2015, the Crown Prosecutor informed the jury that the 1997 interview had been lost and would not be presented at trial. After the complainant gave evidence and had been cross-examined by counsel for the respondent, police informed the Crown that the transcript of the 1997 interview had been located. It became apparent that there were inconsistencies between the account given by the respondent in that interview and what was put to the complainant by his counsel in cross-examination. In both accounts the respondent alleged that the complainant had made a false allegation of sexual assault, the inconsistency concerned the alleged reason for this false allegation. After the 1997 interview was produced, the jury was discharged and the respondent's counsel withdrew. An application for a permanent stay of proceedings was made on the basis of the significant and unexplained delay in the commencement of proceedings, the resultant loss of evidence and the late service of the 1997 interview. The Crown argued that since the respondent had not run a case of lack of memory, the inconsistency must be a result of dishonesty. It reserved its rights to cross-examine the respondent on inconsistencies between the account put to the complainant in cross-examination and any evidence given by the respondent in a future trial, to adduce evidence from the respondent's former legal representatives and to revisit any ruling restricting the Crown in these respects. It was not in dispute that the complainant and respondent engaged in consensual sexual relations prior to the date of the alleged offence, nor that sexual intercourse took place on 9 October 1997, the issue with respect to the offence was consent. The evidence that was allegedly lost as a result of the delay included a drink coaster on which the complainant had written her number when she met the respondent at a bar; phone records indicating the extent of communication between the complainant and respondent; CCTV footage recording the complainant and respondent purchasing condoms before consensual sexual activity and the evidence of a Ms Susan Oong, a friend of the complainant, who had allegedly told a witness, another friend Ms Kelly Abrams, that the complainant told her the respondent was wearing a condom during intercourse, while the complainant had told Ms Abrams that he was not. On 1 September 2015, the trial judge granted a permanent stay. The Crown appealed under s 5F of the Criminal Appeal Act 1912 (NSW). The issues on appeal were: 1. Whether the primary judge misapprehended the Crown's intended use of the 1997 interview when she stated that the Crown intended to cross-examine the respondent on material inconsistencies between the account put to the complainant in cross-examination and the 1997 interview. 2. Whether the primary judge erred in finding that the Crown's intended use of the evidence operated to impose an unfair constraint on the respondent's choice to give evidence. 3. Whether the primary judge erred in concluding that the measures available to her could not remedy the unfairness to the respondent, in particular, s 135 and s 137 of the Evidence Act 1995 (NSW) (Evidence Act). 4. If error was established in the primary judge's exercise of discretion, whether the proceedings should otherwise be permanently stayed. The Court held (Bathurst CJ, Johnson J and R S Hulme AJ agreeing), allowing the appeal: Whether the primary judge misapprehended the Crown's intended use of evidence (i) The trial judge did not misapprehend the course proposed by the Crown. It was not incorrect to say that the Crown was seeking to cross-examine the respondent on inconsistencies between the account put to the complainant in cross-examination and the 1997 interview in a context where it was contemplated that the respondent's future evidence would be influenced by the 1997 interview: [59]-[60] (Bathurst CJ); [75] (Johnson J); [76] (R S Hulme AJ). Whether an unfair constraint was imposed on respondent's choice to give evidence (ii) The late service of the 1997 interview could be productive of unfairness, particularly insofar as it would affect any decision of the respondent to give evidence at a subsequent trial: [61] (Bathurst CJ); [75] (Johnson J); [76] (R S Hulme AJ). Whether the primary judge had measures available to remedy the unfairness (iii) To justify a permanent stay there must be a fundamental defect which goes to the root of a trial of such a nature that there is nothing the court can do to relieve against its unfair consequences: [53], [55] (Bathurst CJ) Jago v District Court of NSW [1989] HCA 46; 168 CLR 23; Dupas v The Queen [2010] HCA 20; 241 CLR 237; R v Glennon [1992] HCA 16; 173 CLR 592 applied (iv) Evidence which would render a trial unfair is, as a matter of definition, unfairly prejudicial under s 137 of the Evidence Act: [63] (Bathurst CJ); [75] (Johnson J); [76] (R S Hulme AJ). R v BD (1997) 94 A Crim R 131; Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 applied (v) Prejudice could have been avoided by making rulings under s 192A of the Evidence Act or s 130A of the Criminal Procedure Act 1986 (NSW)(Criminal Procedure Act) excluding cross-examination on any inconsistencies between the manner in which the complainant was cross-examined at the aborted trial and evidence given at any subsequent trial or cross-examination on any inconsistencies between the case put to the complainant at the aborted trial and the 1997 interview: [64] (Bathurst CJ); [75] (Johnson J); [76] (R S Hulme AJ). (vi) While a ruling under s 192A of the Evidence Act or s 130A of the Criminal Procedure Act can be revisited, the possibility that a further ruling might give rise to injustice does not satisfy the test that it would involve unacceptable injustice required to justify a permanent stay: [54], [66] (Bathurst CJ); [75] (Johnson J); [76] (R S Hulme AJ). KH v R [2014] NSWCCA 294; R v Edwards [2009] HCA 20; 255 ALR 399; Walton v Gardiner [1993] HCA 77; 177 CLR 378 applied. Whether proceedings should otherwise be permanently stayed (vii) The evidence that was lost was of little significance or went only to the credibility of the complainant. In those circumstances, the loss of evidence was not sufficient to warrant a permanent stay: [69]-[70] (Bathurst CJ); [75] (Johnson J); [76] (R S Hulme AJ). (viii) To justify a permanent stay on the basis of delay, it must be shown that the lapse of time is such that a trial is necessarily unfair so that any conviction recorded will bring the administration of justice into disrepute: [72] (Bathurst CJ); [75] (Johnson J); [76] (R S Hulme AJ). Jago v District Court of NSW [1989] HCA 46; 168 CLR 23 applied Judgment 1. BATHURST CJ: By indictment presented on 6 July 2015, the respondent, RD (the respondent), was charged with having sexual intercourse with SM (the complainant) without her consent. The offence was alleged to have occurred on 9 October 1997. The respondent was originally charged with the offence in May 2013. 2. On 1 September 2015, the trial judge ordered the proceedings on the indictment be permanently stayed. The circumstances in which the order was made are set out below. This is an appeal brought by the Crown against that order pursuant to s 5F of the Criminal Appeal Act 1912 (NSW). 3. The trial commenced on 6 July 2015. The Crown case as opened to the jury was that the respondent had met the complainant in a bar. It was opened that they had known each other for about a month when the complainant went to the respondent's unit at Parramatta. It was said that they had sex on that occasion but that it was non-consensual. It was also said that they again had sex on 21 September 1997, but on that occasion it was consensual. It was said that they again had sex on 9 October 1997 which was not consensual. It is the latter incident which is the subject of the charge. 4. It was common ground the complainant made a statement to the police on 10 October 1997, the day after the alleged offence occurred. On that day the police made an application for an apprehended violence order on behalf of the complainant. On 15 October 1997, the respondent was interviewed by the police concerning the allegations. He denied the allegations and gave a statement to the police concerning his relationship with the complainant. In his opening, the Crown Prosecutor told the jury that the statement had been lost. 5. On 3 December 1997, a final apprehended violence order was made against the respondent for the protection of the complainant. The order was made by consent and without admission. 6. The complainant gave evidence at the trial and was cross-examined by counsel for the respondent. After that cross-examination was completed, the police advised the Crown that the transcript of the interview between the respondent and the police in 1997 had been located, although the recording of it was said to have been lost. As the trial judge recorded, it became apparent that the account given by the respondent in 1997 differed from what was put to the complainant by his counsel in cross-examination. In cross-examination it was put to the complainant that she had discovered the respondent's infidelity with another woman and her reaction had been to make false allegations of sexual assault in respect of an incident of consensual sexual activity. By contrast, he said in his statement that he and the complainant had consensual sexual intercourse but he ended the relationship because he found the complainant was still emotionally involved with her former boyfriend. 7. After the interview was produced, the jury was discharged and the respondent's counsel withdrew from representing him. The application for a stay was then made and was successful. 8. The balance of the factual matters relevant to the application are set out in the judgment of the trial judge (the primary judgment) which I have summarised below. The primary judgment 1. The trial judge set out the facts to which I have referred above. She noted that no explanation had been given for the delay in bringing the proceedings. 2. The trial judge stated that the Crown proposed that if the respondent gave evidence at a further trial, the Crown would cross-examine him on inconsistencies between his account in the 1997 interview and the account put to the complainant in cross-examination at the aborted trial. 3. The trial judge also noted that the original brief of evidence had been destroyed and that the respondent was therefore unaware of what investigations were made by the police and what statements were obtained from potential witnesses at that time. 4. The trial judge referred to the fact that a witness, Kelly Abrams, made a statement in October 1997 about a complaint made to her by the complainant. Ms Abrams said the complainant told her the respondent did not use a condom whilst having intercourse but that another friend of the complainant, Ms Oong, had told her [Ms Abrams] that she was told by the complainant that the respondent had used a condom. The trial judge noted that Ms Oong had not been located and that the respondent submitted that he would be deprived of the forensic advantage arising from the inconsistency in the complaints. 5. The trial judge recorded that when the respondent was interviewed in 1997 he gave the police a drink coaster which he said the complainant wrote her phone number on and gave to him. The coaster had been lost and the trial judge noted that the respondent submitted that he was deprived of the impact its production may have on the jury. 6. The trial judge noted that the other evidence which was not available was phone records to show the extent of communication between the complainant and the respondent and who initiated the contact and CCTV footage from a Woolworths store in which, on the respondent's version, he and the complainant purchased condoms before the consensual sexual activity of 21 September 1997. 7. The trial judge noted that in the course of submissions the Crown Prosecutor stated that he would only cross-examine the respondent about material inconsistencies between his case as put to the complainant in cross-examination and the 1997 interview. She noted the Crown submitted that the respondent did not run a case of lack of memory due to delays leading up to the previous trial, which it submitted led to the conclusion the accused was dishonest either in his 1997 version or in the version he gave to counsel at the trial. She noted the Crown reserved its rights to adduce evidence from the respondent's legal representatives should the respondent not agree that the matters put to the complainant in cross-examination were put on his instructions. She noted the Crown conceded this created a situation of unfairness but that the Crown insisted on its rights to exploit that unfairness. She noted the Crown did submit that one option would be to refuse the application for a stay but rule the Crown could not take the course of cross-examining the accused as foreshadowed. Alternatively, the Crown submitted, her Honour could simply refuse the stay and revisit the issue of restricting the Crown as the trial proceeded. 8. The trial judge pointed out that it would not be unreasonable for the accused to have thought that no further steps would be taken in the matter in the 16 years between the time he was interviewed and the time he was charged. She also referred to the lost, destroyed or unavailable evidence, noting that some could be dealt with by directions to the jury but said that even with such directions the respondent had lost the forensic advantage or opportunity to make a point of impact to the jury, which eroded the respondent's capacity to conduct the trial as he would like. However, she concluded that that unfairness of itself would not warrant a stay of proceedings. 9. However, her Honour stated that the timing of the discovery and production of the lost interview could not be more damaging to the respondent, having been disclosed after the respondent committed himself to a version of events in the cross-examination of the complainant. She said the approach of the Crown to which I have referred above at [15], would mean that the accused did not have a fair choice about whether or not to give evidence but rather his decision would be inhibited by the apprehension of how the Crown would cross-examine him. 10. Her Honour noted she could make a ruling that the Crown could not cross-examine on the differences between the respondent's 1997 statement and the cross-examination in the previous trial but she noted the Crown said it may seek to revisit the issue during the course of the trial if such a ruling was made. 11. Her Honour stated that directions to the jury could not fully address the prejudice to the accused from the unavailable evidence and that rulings preventing the Crown from using the previous cross-examination of the complainant in the manner indicated could not fully address the disquiet or uncertainty about fairness of the trial the respondent would experience. She concluded that a combination of these factors would render a trial unacceptably unfair. 12. Her Honour concluded that balancing the factors of the delay, prejudice and unfairness to the accused and the public interest in the prosecution of the respondent for the offence for which he was charged, the test for a permanent stay had been made out. Accordingly, her Honour permanently stayed the proceedings. The appeal 1. One of the bases on which it was said that her Honour erred in the exercise of her discretion was that she misapprehended the course the Crown submitted it would take in any future trial. In these circumstances, it is necessary to record some part of the submissions made by the Crown on the stay application. 2. Early on in the Crown submission on the application, the Crown Prosecutor made it clear that the Crown did not accept that any difference between the transcript and the matters put in cross-examination could be attributed to loss of memory. He made the following remarks: "… if the accused gives evidence and it is materially at odds … [with] what was put previously by Mr Murray, his former counsel[,] then I would – and it goes without saying subject to any of your Honour's such rulings would raise those with the accused and look to take a certain course in the event that he was to deny them. … But here, I mean, through a version of events put to the complainant by Mr Murray and we would ultimately say your Honour and the jury putting – on instructions was not asserting a lack of memory, he was asserting specific acts attributing a motive to [the complainant] for making up what the accused would say was this lie of non-consensual intercourse." 1. The Crown Prosecutor also made it clear he wished to exploit the unfairness created by the late discovery of the statement by cross-examining the respondent on inconsistencies between the cross-examination of the complainant and any evidence he would give at a subsequent trial: "CROWN PROSECUTOR: Your Honour, yes, there has been an unfairness created and, yes, I do wish to exploit it. I speak quite candidly. This is not only at the feet of the Crown. In my submission nobody made RD have Mr Murray put those matters to [the complainant] – HER HONOUR: No but you say the only explanation is he's made it up rather than there's any prospect of mistake give[n] the time frame? CROWN PROSECUTOR: Yes I do, I do. Your Honour I say this, yes the Crown dragged its feet and I can only add my own experience, I've never come across a case where the record of interview came up as it were after [the] complainant was cross-examined. That is remarkable, no question about that but one I'm not going to be tendering that record of interview and I've said to Mr White in that email, unless he wants it tendered. I do that as a matter of fairness. So he can have that contemporaneous or relatively contemporaneous denial in front of the jury. It's up to RD how he chooses to run his case. If he chooses to give evidence, of course he's entitled to, he doesn't have to but if he chooses to give evidence and it's inconsistent with what was put to [the complainant] previously, that would trigger a situation where yes I would look to exploit it. HER HONOUR: But doesn't that then cause him a difficulty in the Crown having told that that will be the case, doesn't that put pressure on him in his decision whether he'll give evidence or not? CROWN PROSECUTOR: I wouldn't say it puts pressure on him but informs him fully. This is why from before Mr White was briefed I made it plain to his then representatives that this could well arise and I've been at pains to advise Mr White as soon as he came into the matter that potentially I could be calling his former representatives. So I'm putting my cards very squarely on the table –" It should be noted that the prosecutor expressly stated he did not intend to tender the record of the interview. 1. The Crown summed-up its position in the following terms: "I hear what your Honour said earlier but my position is this, that your Honour would infer, and the jury could infer, that the instructions to Mr Murray were detailed. He was suggesting to Mr Murray that he had a particular knowledge, not one of many fights but a fight which resulted in him being interviewed by the police and the most serious allegation being made about him and your Honour ultimately that points in my submission to a conclusion that he's been dishonest either at the time of the record of interview or at the time he's instructed Mr Murray to cross-examine. Your Honour has options, (1) to grant a stay; (2) to refuse it; (3) refuse it but on the basis that the Crown's prohibited from embarking on the course that I've indicated what I propose to take. I would submit your Honour should not confine me in that regard but your Honour can do this. Refuse the stay. Your Honour is entitled and it's in the authority, I just don't have it in my hand but of course your Honour could revisit that in time. Your Honour can deal with the issue if and when it arises with RD, obviously I'm not going to be opening on anything that RD may say or the way the trial may end up proceeding. That would be the course I propose would only become – come to fruition or materialise if RD was to give evidence. Your Honour could then make a ruling as to whether I'm entitled to go down that path or not. So that's a middle ground, I don't seek to diminish my primary submission but your Honour can say well I'll refuse the stay application but I won't permit the Crown to do that. Now your Honour need not do the latter part of that now, that could be something addressed later in the proceedings. His Honour spoke of the various options confronting the court or available to the court. HER HONOUR: Para 94 Justice Howie is saying the trial judge can revisit decisions. CROWN PROSECUTOR: Yes precisely that's it. Before I sit down I will then hand up a copy of the transcript, it's not a tender, I've simply highlighted part of the transcript to indicate those areas which I would, if permitted, put to RD should his evidence be materially at odds. So just to identify those particular areas." 1. Further, it should be noted that the solicitor for the respondent filed an affidavit in support of the stay application. The following statement was made in the affidavit: "26. As indicated above, as a result of the late service of the transcript of the 1997 interview, the Accused's memory has now been refreshed by this contemporaneous statement. This interview should have been served before the July trial. As a result of his memory being refreshed, there are matters he should have put to the complainant that he didn't put to her and there are matters that he put to the complainant that he shouldn't have put to her. If he now puts a different version to the complainant in a further trial to the version he put to the complainant in the July 2015 trial, he will be adversely criticised for making inconsistent statements. The Crown have even suggested that they will adduce evidence from his previous lawyers to highlight these inconsistencies. This is unfairly prejudicial to the Applicant because in truth the problem has arisen due to the late service of the interview and not due to any fault on his part." The submissions 1. In written submissions filed in support of the appeal, the Crown submitted that the fundamental error in the assessment made by the trial judge was that she misunderstood the course proposed by the Crown. It was submitted that her Honour appeared to be under the impression that the Crown sought to cross-examine the respondent on the differences between the version of events put to the complainant and the version in the record of interview. The Crown submitted that this was not correct but that rather it was proposed to cross-examine on any material inconsistencies between the evidence to be given at any further trial and what was put to the complainant in cross-examination in the aborted trial. 2. It was submitted that that error led to two consequential errors. First, that her Honour wrongly found the inconsistency imposed an unfair constraint on the respondent's choice to give evidence and second, an incorrect conclusion that the measures available could not remedy that unfair constraint. 3. The Crown submitted that, in fact, the 1997 interview was not to be relied upon at all and therefore any inconsistency between evidence the respondent chose to give and the 1997 statement had no bearing, and did not impinge on, the respondent's choice of whether or not to give evidence. 4. The Crown referred to the conclusion by the trial judge that the possibility of being cross-examined on the 1997 interview hung over the respondent's head and would affect his decision whether or not to give evidence. It submitted there was no such prospect as an assurance had been given that the 1997 transcript would not be relied upon. 5. The Crown submitted the respondent had committed himself to a particular version in cross-examination at the first trial and there was nothing unusual in the proposition that if the respondent subsequently gave inconsistent evidence, certain consequences may follow. It submitted the trial judge could control any unfairness. 6. The Crown also submitted that any unfairness could have been prevented by ordering that the Crown Prosecutor not be permitted to raise the previous cross-examination of the complainant in any manner at the trial. It submitted her Honour erred in saying that the mere fact that the Crown could seek to revisit the ruling meant she could not ensure a fair trial. The Crown submitted that revisiting the ruling pursuant to s 130A of the Criminal Procedure Act 1986 (NSW) (Criminal Procedure Act) would have been near impossible. As an alternative, the Crown submitted that the trial judge could have sought an undertaking from the Crown as a model litigant not to revisit the ruling. 7. In that context, senior counsel for the Crown submitted that the trial judge had a readily available remedy in s 135 and s 137 of the Evidence Act 1995 (NSW) (Evidence Act). 8. Senior counsel for the Crown pointed out that in any future trial the complainant could have been cross-examined the same way as in the previous trial, something he accepted was highly unlikely following the withdrawal of the lawyers who represented the respondent at the first trial. Second, he suggested she could have been cross-examined in an identical manner to the respondent's statement in the record of interview while, third, the cross-examination could be different to both versions or an amalgamation of the two approaches. If the second scenario occurred, he submitted that since the Crown could not split its case, it would then have to call the former barrister and solicitor, a course which he submitted, "there wouldn't be many District Court judges who would have felt comfortable in allowing the Crown to have taken". He submitted in that context, s 135 and s 137 of the Evidence Act would operate having regard to the great prejudice of calling those representatives over the limited probative value. 9. Senior counsel for the Crown emphasised that prior to granting a stay, the trial judge had to be satisfied there was a fundamental defect which goes to the root of the trial and that there was nothing the trial judge could do to relieve against its unfair consequences. 10. Senior counsel for the Crown referred to the third possibility, that in any future trial the complainant may be cross-examined in a manner different from the record of interview and different to the manner of cross-examination at the first trial. He submitted in those circumstances, where the second cross-examination was not based on the record of interview, there could be no objection to the accused being cross-examined on any discrepancies. He submitted that that disclosed the error made by the trial judge as the Crown was not seeking to cross-examine on the record of interview but rather on discrepancies in the manner the complainant was cross-examined at the first trial and any subsequent trial. 11. Senior counsel for the Crown submitted that the trial judge had the power and the duty to make orders short of a stay which would assure a fair trial, irrespective of the approach taken by the parties at the hearing. He submitted that the trial judge acknowledged the remedies but fell into error in not properly considering s 135 and s 137 and the unrealistic nature of revisiting those rulings. 12. In written submissions, the Crown referred to the new evidence on which it sought to rely, which was tendered on the basis that it could be used if error was established. The evidence was to the effect that the matter was revisited in 2013 because the respondent's DNA was linked to four allegations of sexual assault between 1997 and 2008. The affidavit stated that it was then determined to charge the respondent with the four offences, believing the matters may be heard together if they were to proceed to trial. 13. In relation to the lost evidence, the Crown submitted there was no dispute that the complainant gave the respondent her telephone number or that she called him and arranged a further meeting. The Crown also pointed out that the evidence of the complainant's friend, Kelly Abrams, was that on the night she met the respondent, she noted the complainant giving him her telephone number. In these circumstances, the Crown submitted the coaster would not provide any further assistance to the respondent. 14. The Crown accepted that the telephone records may have established the frequency and pattern of the telephone calls between the respondent and the complainant and confirmed that the complainant telephoned the respondent rather than the other way around. However, it was submitted this was not of particular significance given it was not disputed that there was a sexual relationship and that the respondent and the complainant were in regular contact over a four week period. 15. In relation to Ms Oong, the Crown referred to the statement of Ms Abrams in which she said that Ms Oong claimed the complainant had told her that the respondent had worn a condom during the intercourse the subject of the charge, whereas the complainant had told her that he had not. Ms Abrams noted the inconsistency and commented that the complainant told different stories to different people, which led her to be unsure whether to believe her. It was submitted this evidence was very favourable to the defence. It was also noted the evidence of Detective Kench indicated that Ms Oong may now be available. 16. The Crown accepted that the loss of the CCTV footage at Woolworths resulted in a loss of an opportunity to confirm the respondent's account of having purchased the condoms at Woolworths in the company of the complainant. However, the Crown submitted it was of minor significance. The complainant had agreed she met the respondent at Westfield Shoppingtown where the Woolworths store was located on 21 September and that thereafter they had consensual intercourse. The complainant accepted the respondent wore a condom on that occasion. 17. The Crown noted that the significance of the purchase of the condoms related to an argument alleged to have occurred on 9 October after the sexual intercourse, the subject of the proceedings, took place. It was put to the complainant that three condoms were purchased on 21 September and there were two used on that day, leaving one remaining. It was suggested that on 9 October when they next saw each other the respondent had no condoms. It was suggested this was part of the reason the complainant became suspicious the respondent had been unfaithful. 18. However, the Crown submitted this was a relatively minor matter in the particular circumstances of the case. There was no dispute intercourse occurred on 9 October and that there was an argument after it occurred. The only issue was consent. The Crown noted it was not put to the complainant that she reported the alleged rape to the police to obtain revenge for the respondent's infidelity. 19. In these circumstances the Crown submitted that the loss of evidence complained of, either alone or in total, did not warrant a permanent stay. 20. The respondent submitted that the trial judge did not misapprehend the approach which was proposed to be taken by the Crown should a stay not be granted. He stated that where the trial judge said that, if the respondent gave evidence, the Crown proposed that it would cross-examine him between the inconsistencies in his account in the 1997 interview and what was put to the complainant in cross-examination, she was referring to submissions made by the Crown Prosecutor that he proposed to cross-examine about the differences "in the context of the evidence that he contemplated would be given by the respondent in the trial" [emphasis added]. The respondent pointed out that later in her judgment, the trial judge expressed the submission of the Crown in precisely the same form as was put by the Crown in the written submissions in this appeal. 21. The respondent submitted that the Crown's argument failed to acknowledge the effect the 1997 version would have on the respondent's evidence in the new trial. He submitted that both the prosecutor and the presiding judge contemplated that the evidence which the respondent would give at the trial would be influenced by the 1997 interview. In that context, the respondent submitted the suggestion that the 1997 interview would not be relied upon was academic. It submitted that if the respondent gave evidence which was consistent with the 1997 interview and was cross-examined on the inconsistency between that evidence and what had previously been put to the complainant, the respondent would be obliged to tender the 1997 interview as a prior consistent statement. Thus, the 1997 interview would inevitably find its way into evidence. 22. The respondent noted that the Crown Prosecutor conceded that the course he suggested put pressure on the respondent as to whether he should give evidence. He submitted the pressure was greater than that usually faced because of the timing of the production of the 1997 interview. He submitted he was effectively deprived of a free choice about whether to give evidence in the trial. The respondent submitted the trial judge was correct in concluding that the Crown would have the right to revisit any ruling she made prohibiting cross-examination on any inconsistency between his evidence and the version which was put in cross-examination at the aborted trial. He submitted notwithstanding s 130A of the Criminal Procedure Act under which an order could only be revisited where it was considered not in the interests of justice for it to be binding, the uncertainty would remain. 23. Counsel for the respondent submitted that the difficulty facing the Crown on the appeal was the manner in which the prosecutor dealt with the situation at the trial. He said the prosecutor had the choice of abandoning the proposal of relying on the version put to the complainant, or seeking to take advantage of it. He submitted that the Crown having chosen the latter course meant there was no error in the exercise of the discretion to grant a stay. He emphasised that any order prohibiting cross-examination based on what was put to the complainant at the aborted trial could be revisited so the uncertainty and anxiety would remain. 24. The respondent emphasised that there were other factors which the trial judge took into account in granting the stay. On the question of delay, he submitted the evidence of Detective Kench is new evidence rather than fresh evidence and should not be admitted. He submitted that in any event it would make no difference to the result. 25. In relation to the drink coaster, the respondent submitted that without having the opportunity to inspect it, the degree it could assist the respondent could not be ascertained. He submitted the telephone records would show who originated telephone calls which was relevant to the credibility of the complainant's assertion that the respondent was constantly contacting her. 26. So far as Ms Oong was concerned, the respondent submitted the evidence of Ms Abrams was second-hand hearsay and may not be admissible under s 65 of the Evidence Act. He said that Ms Abrams' evidence concerning the complainant telling different stories to different people was inadmissible by virtue of s 293 of the Criminal Procedure Act. He submitted the evidence concerning the purchase of condoms at Woolworths, if confirmed by the CCTV findings, may have been relevant to her credibility, having regard to her denial that such condoms were purchased. 27. The respondent also pointed to the evidence of Detective Kench and noted that it disclosed that Ms Oong's evidence had changed from a recollection that the complainant told her the respondent was wearing a condom (what she told Ms Abrams) to a vague recollection where she could not say anything word for word. Disposition 1. It has been consistently emphasised that the grant of a permanent stay is an exceptional remedy. It is unnecessary to go back beyond the decision of the High Court in Jago v District Court of NSW [1989] HCA 46; 168 CLR 23 (Jago). In a well-known passage from the judgment of Mason CJ in that case he stated, referring to what was said by Richardson J in Moeavo v Department of Labour [1980] 1 NZLR 464 at 482, that the yardstick is not simply fairness to the particular accused. Rather, it is whether the continuation of the prosecution is inconsistent with the recognised purpose of criminal justice and so constitutes an abuse of the process of the court: Jago at [13]. His Honour emphasised that to justify a permanent stay of criminal proceedings there must be a fundamental defect which goes to the root of a trial of such a nature that there is nothing the court can do to relieve against its unfair consequences: at [21]. That statement of principle has been followed consistently. 2. In R v Edwards [2009] HCA 20; 255 ALR 399 (Edwards) the Court, referring to Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 392, stated a stay would be granted if the proceedings would involve unacceptable injustice or unfairness or whether the continuation of proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. The Court emphasised the requirement that to justify a permanent stay, the proceedings must inevitably, rather than possibly, have that effect: at [23]-[24]. 3. In Dupas v The Queen [2010] HCA 20; 241 CLR 237 the Court said that the statement by Mason CJ and Toohey J in R v Glennon [1992] HCA 16; 173 CLR 592 at 605-606, to the effect that a permanent stay will only be ordered in an extreme case and that there must be a fundamental defect of such a nature that nothing a trial judge can do in the conduct of the trial will relieve against its unfair consequences, should be accepted as an authoritative statement of principle: at [18]. 4. In Walton v Gardiner, Mason CJ, Deane and Dawson JJ at [26], referring to Jago, stated that the question of whether criminal proceedings should be permanently stayed as an abuse of process falls to be determined by a weighing process involving the subjective balancing of a variety of factors and considerations including the requirement of fairness to the accused, the legitimate public interest in the disposition of charges for serious offences and the need to maintain public confidence in the administration of justice. 5. The principles are helpfully summarised by Johnson J in Webb v The Queen [2012] NSWCCA 216; (2012) 225 A Crim R 550 at [64]-[71]; see also X7 v The Queen [2014] NSWCCA 273 at [84]-[93]; R v Gilham [2007] NSWSC 231; 190 A Crim R 303 at [78]-[80]. 6. The parties accepted that a decision to grant or refuse a stay is discretionary such that the principles in House v The King [1936] HCA 40; 55 CLR 499 applied to the determination of the appeal: Calleija v The Queen [2012] NSACCA 37; 223 A Crim R 39 at [6]. 7. It does not seem to me that the trial judge in exercising her discretion misapprehended what was proposed by the Crown. The respondent, in my opinion, is correct in saying that her Honour's remarks that the Crown proposed to cross-examine on the inconsistencies between the 1997 statement and what had been put to the complainant, was in the context that the respondent would give evidence consistent with what was said in the 1997 statement. The evidence of the solicitor to which I have referred at [25] above is not inconsistent with that conclusion. Further, as the respondent pointed out, the trial judge subsequently referred to the Crown proposing to cross-examine on any inconsistencies between what was put to the complainant in the aborted trial and any subsequent evidence given by the respondent. 8. Further, the respondent was correct in my view in submitting that if at any subsequent trial he gave evidence based on the 1997 statement, any cross-examination on inconsistencies between that evidence and what was previously put to the complainant, would inevitably lead to the conclusion that the different version resulted from the availability of the 1997 statement. 9. It does not seem to me in those circumstances the trial judge erred in concluding that the late production of the statement could be productive of unfairness, particularly insofar as it would affect any decision of the respondent to give evidence at a subsequent trial. However, the question remains whether there was anything the trial judge could do to relieve against such consequences. 10. Most relevant in the present case is s 137 of the Evidence Act, which is in the following terms: "137 In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 1. Unfair prejudice for the purpose of s 137 of the Evidence Act is generally described as prejudice which is unfair because there is a real risk that the evidence will be misused by a jury in some unfair way: R v BD (1997) 94 A Crim R 131 at 139; Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at [29], [91]. It seems to me that evidence which would render a trial unfair must as a matter of definition be unfairly prejudicial. Neither party contested this either at the trial or on appeal. 2. In the circumstances, the prejudice complained of could have been avoided by making rulings excluding cross-examination on any inconsistencies between the manner in which the complainant was cross-examined at the aborted trial and evidence given at any subsequent trial or cross-examination on any inconsistencies between the case put to the complainant at the aborted trial and the 1997 statement. Such rulings could be given in the exercise of the power to make advance rulings under either s 192A of the Evidence Act or s 130A of the Criminal Procedure Act. 3. The trial judge considered this option without making specific reference to the sections to which I have referred but declined to make such a ruling on the basis of disquiet and anxiety that the ruling could be revisited. 4. In my respectful opinion her Honour erred in reaching that conclusion. Whilst it is correct that such rulings can be revisited (Criminal Procedure Act s 130A(1), (3); KH v R [2014] NSWCCA 294 at [24] (in the case of s 192A of the Evidence Act)), that possibility does not mandate a stay. First, as was pointed out in Edwards, the relevant question is whether the proceedings would involve unacceptable injustice. A possibility of a further ruling which might give rise to such injustice, does not meet that criterion. Second, it is inherently unlikely that a ruling designed to ensure a fair trial would be refused unless there were significant changes of circumstances rendering the ruling unnecessary. 5. For these reasons, an order under s 137 of the Evidence Act of the nature which I have suggested would avoid the prejudice arising out of the late service of the statement. 6. It is correct that her Honour granted the stay, not only on the basis of the late production of the 1997 statement, but also on the basis of the delay in the commencement of the proceedings and the associated evidentiary issues which arose. However, she pointed out that these features of themselves would not warrant a permanent stay: see above at [16]. She was correct in so concluding. 7. As the Crown pointed out, the absence of the drink coaster is of little significance having regard to the fact it was not in issue that the complainant gave the respondent her telephone number. Further, the absence of telephone records indicating who initiated phone calls is not of particular significance having regard to the fact that it is not in dispute that the parties were in regular contact over the four week period prior to the sexual intercourse the subject of the charge, a period which involved having consensual sexual intercourse on one occasion. Similarly, the loss of the CCTV footage which would show condoms being purchased on the day of that consensual sexual relationship may have been of some assistance in attacking the complainant's credibility, but its absence is not of such significance to justify a stay. 8. In relation to the evidence of Ms Oong, the affidavit of Detective Kench was not tendered on the appeal and it is appropriate to proceed on the basis that the evidence is as before the trial judge, namely, that she could not be located. Whilst it is correct that there is no material either before her Honour or before this Court that the pre-conditions to the admission of second-hand hearsay required by s 65 of the Evidence Act could be satisfied in respect of the evidence of Ms Abrams as to what Ms Oong told her, even if inadmissible, the absence of such evidence, going only to the credibility of the complainant, would not be such as to warrant a permanent stay. It would be open to counsel for the respondent to put to the complainant in cross-examination what she was alleged to have put to Ms Oong. If this was denied, directions could be given to the jury that nothing was to be taken from Ms Oong's absence. 9. As both parties in their submissions referred to the evidence of Detective Kench that Ms Oong had been located, it is appropriate to indicate that this would not alter the conclusion which I have reached. The fact that her recollection, unsurprisingly, is now vague, is not a matter to warrant a permanent stay. 10. That leads finally to the question of delay. It is well-established that where delay is the sole ground for complaint an accused seeking a permanent stay must be able to show that the lapse of time is such that any trial is necessarily unfair, so that any conviction recorded will bring the administration of justice into disrepute: Jago at [21]. As the trial judge correctly accepted, the delay is not of such a nature in the present case. 11. In the circumstances, once it is clear that steps could be taken to avoid any injustice flowing from the late service of the 1997 statement, the case was not one which justified an order that proceedings be permanently stayed. 12. I would make the following orders: 1. Appeal allowed. 2. Set aside the order made by the trial judge permanently staying the proceedings. 1. JOHNSON J: I agree with Bathurst CJ. 2. R S HULME AJ: I agree with the orders proposed by the Chief Justice and with his Honour's reasons. ********** 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. Decision last updated: 05 June 2019