[2025] SADC 40

Prosecution: R Counsel: MS L DUNLOP SC - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: MATTHEW SIMON POPE Counsel: MR S HENCHLIFFE KC - Solicitor: BRIAN DEEGAN LAWYERS Hearing Date/s: 06/08/2024 to 07/08/2024, 11/02/2025 File No/s: DCCRM-16-39 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. R v POPE [2025] SADC 40 Reasons for Ruling of his Honour Judge Handshin 16 April 2025 CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL This is an application for a conditional stay of proceedings pursuant to Rule 39.1(1)(b) of the Joint Criminal Rules 2022. The applicant is charged with seven counts of unlawful sexual intercourse, contrary to section 49(3) of the Criminal Law Consolidation Act 1935 (SA). The alleged offending is said to have taken place between 1999 and 2001 against the applicant’s then teenage foster sister. This matter has a protracted litigation history. There have been seven previous trials. This application was brought prior to the eighth trial of the charges against the applicant. At the sixth and seventh trials, the prosecution agreed to the tender of a document and agreed facts relating to allegations made by the complainant to her mother about having sex with a different foster brother, which allegations the complainant had denied making during her evidence and which she said would be false if in fact made. The agreements made at the sixth trial were adhered to and elaborated on at the seventh trial. The effect of the agreements has been that it was not necessary at the sixth or seventh trials for the complainant’s mother to give evidence because the prosecution accepted that, based on affidavits sworn by the mother, the allegations were in fact made and it was appropriate to agree as much. Shortly before the eighth trial, the prosecution advised the applicant’s lawyers that it would not adhere to the agreements and would instead call the complainant’s mother to give evidence in person, whose evidence it contemplates challenging at least on the grounds of reliability. On the hearing of the application, a further affidavit from the complainant’s mother was tendered in which she expressed difficulty remembering the disclosures made by her daughter, which she had previously deposed to with clarity. The applicant contends that the agreements reflected an acceptance by the prosecution of the credibility and reliability of the evidence of the complainant’s mother about the false allegations made by the complainant and that, having invited a judge of the Court to determine the applicant’s guilt or innocence on that basis, it is an abuse of process for the prosecution to renege on the agreements and put in issue whether the false allegations were in fact made. -- 1 of 84 -- Held: The application for a conditional stay is granted. The conduct of the parties at the sixth and seventh trials created a state of affairs in which there was no contest that the complainant had made the false allegations to her mother. The jury at the sixth trial were going to be invited to determine the applicant’s guilt or innocence on the basis that they should not doubt the allegations were made. The trial judge at the seventh trial was told by the prosecution that he should find it proved that the allegations were made by the complainant. The withdrawal from the agreements, combined with the intention to now challenge the evidence of the complainant’s mother (to the extent it can given the prosecution propose to call her) and put in issue whether, as a matter of history, allegations it previously accepted were made were in fact made, is an abuse of process. The withdrawal from the agreed position is either productive of such unfairness or unjustifiable oppression or would otherwise bring the administration of justice into disrepute, so as to warrant the grant of a stay until the grounds on which the abuse arises are addressed. Criminal Law Consolidation Act 1935 (SA) s 49(3); Criminal Procedure Act 1921 (SA) s 158(3); Evidence Act 1929 (SA) s 53, referred to. Park (a pseudonym) v The King [2022] SASCA 1132; Nguyen v The Queen (2020) 269 CLR 299; R v Quist [2017] SASCFC 37; Mahmood v Western Australia (2008) 232 CLR 397; Spence v Demasi (1988) 48 SASR 536; R v H, ML [2006] SASC 240; Barry v Police [2009] SASC 295; R v Helps [2016] SASCFC 154; R v Golubovic [2016] SASCFC 144; R v Taheri [2017] SASCFC 92; R v Garrod [1997] Crim LR 445; Dyers v The Queen (2002) 210 CLR 285; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; Rogers v The Queen (1994) 181 CLR 251; Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; Williams v Spautz (1992) 174 CLR 509; PNJ v The Queen [2009] HCA 6; Jago v District Court (New South Wales) (1989) 168 CLR 23; Willmot v Queensland (2024) 98 ALJR 1407; La Rocca v The King [2023] NSWCCA 45; R v Glennon (1992) 173 CLR 592; Dupas v The Queen (2010) 241 CLR 237; Moti v The Queen (2011) 245 CLR 456; Barton v The Queen (1980) 147 CLR 75; R v Horseferry Road Magistrates’ Court; ex parte Bennett [1994] 1 AC 42; Truong v The Queen (2004) 223 CLR 122; Walton v Gardiner (1993) 177 CLR 378; Whitehorn v The Queen (1983) 152 CLR 657; Richardson v The Queen (1974) 131 CLR 116; M, RS v The Queen [2018] SASCFC 37; R v Edwards (2009) 83 ALJR 717; Director of Public Prosecutions (Vic) v Tuteru [2023] VSCA 188; R v Taufahema (2007) 228 CLR 232; Jiminez v The Queen (1992) 173 CLR 572; Ibrahim v Police [2013] SASCFC 70; Williams v The State of Western Australia [2021] WASCA 33; R v Busson [2008] SASC 89; Police v Pakrou (2008) 103 SASR 124; LJW v The State of Western Australia [No 2] [2007] WASCA 275; R v Mohi (2000) 78 SASR 55; Chu Piu-wing v Attorney-General [1984] HKLR 411 ; R v Betesh (1975) 30 CCC (2d) 233; R v Crneck (1980) 116 DLR (3d) 675 ; Malvaso v The Queen (1989) 168 CLR 227; GAS v The Queen (2004) 217 CLR 198; Barbaro v The Queen (2014) 253 CLR 58; R v Davis (1995) 57 FCR 512; Jack v Smail [1905] HCA 25; (1905) 2 CLR 684; Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573; R v Collie [2005] SASC 148; (2005) 91 SASR 339; Duncan (1981) 73 CR App R 359; Callaghan v The Queen [1993] QCA 419; [1994] 2 Qd R 300; Ridgeway v The Queen (1995) 184 CLR 19, considered. -- 2 of 84 -- R v POPE [2025] SADC 40 Criminal jurisdiction 1 The applicant is charged on Information with seven counts of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). The proceedings, which have a chequered history, were listed for trial before me, sitting without a jury, on 6 August 2024. On the morning the trial was due to commence, the applicant sought an order staying the proceedings in response to a shift in the position being taken by the prosecution as to how it proposed to present its case, in particular, with respect to the tender of certain exhibits and adherence to factual agreements made between the parties and presented to the Court at two previous trials of the Information. 2 By way of overview, the alleged offending is said to have taken place between 1999 and 2002. The complainant, AW, was, at the time, the applicant’s teenage foster sister. She was living with the applicant’s family during the period of alleged offending and was between 13 and 16 years old. The applicant was between 27 and 29 years old. Prior to taking up residence with the applicant’s family, the complainant had lived with another foster family, who I will refer to as the N family. The eldest son of the N family was LN, who was some 6 to 8 years older than the complainant. 3 The prosecution case is that after the complainant moved in with the applicant’s family, he sexually assaulted her in the family home or on the family farm. Proof of the charged acts is entirely dependent on the complainant’s account and the credibility and reliability of her evidence is likely to be the critical forensic issue at trial. 4 The application, which is brought pursuant to Rule 39.1(1)(b) of the Joint Criminal Rules 2022, is in the following terms: 1. That the criminal proceedings against the defendant in this matter are stayed unless and until the Director of Public Prosecutions (SA) indicates that he will consent to the tender at the trial of Exhibits D12, D13 and P18 from the previous trial of these proceedings before His Honour Judge Boylan and will agree that the agreed facts and evidence in Exhibits D12, D13 and P18 are true and correct and should be accepted as true and correct by the Court. 5 The application was supported by an affidavit1 sworn by the applicant’s solicitor that set out the history of the proceedings and exhibited various passages of transcript, as well as the exhibits and agreed facts the subject of the application. 6 The context of the application requires some further elaboration. 1 VDD1, Affidavit of Patrick Deegan, 6 August 2024. -- 3 of 84 -- [2025] SADC 40 2 7 The trial before me was to be the eighth trial of these charges. Five previous attempts to try the charges have resulted in mistrials. The applicant has twice been convicted, most recently in 2021 following a trial before a judge sitting alone (the seventh trial), but appeals against conviction have subsequently been allowed and re-trials ordered.2 8 At the sixth and seventh trials, the prosecutors then appearing on behalf of the Director of Public Prosecutions made apparently informed and authorised decisions to agree facts relating to out of court statements made by the complainant (which became exhibits D13 and P18 at the previous trials) and to agree to the tender of a particular document (which became exhibit D12). The agreed facts, and exhibit D12, concern matters said to be of considerable importance to a proper assessment of the complainant’s evidence and it was common ground at the seventh trial, in particular, that they demonstrated the complainant had, on a number of occasions, made false allegations to her mother (DB) that she had sex with LN. The decision to agree facts, based on affidavits sworn by the complainant’s mother and exhibit D12, reflected an acceptance by the prosecution of the credibility and reliability of the prospective evidence of the complainant’s mother on this topic. 9 At the seventh trial, the Director also tendered a copy of the transcript of the applicant’s incomplete evidence in chief at the sixth trial (P16 at the seventh trial and VDD8 before me). 10 As can be discerned from the terms of the application itself, the gravamen of the applicant’s complaint is that the proceedings ought to be conditionally stayed because, in the lead up to the eighth trial, the prosecution put the applicant on notice that it was no longer prepared to agree the facts in D13 and P18 or agree to the tender of D12 and P16, as it had at the sixth and seventh trials. 11 After the applicant was advised of the change in the prosecution position, a further affidavit from the complainant’s mother was disclosed which, as I will discuss in more detail later in these reasons, does not in any respect suggest that what she had previously deposed to was false or incorrect but which would appear to convey a not insignificant deterioration in her memory about the false allegations. 12 The prosecution position on the hearing of the application before me was not only that it was intended to call the complainant’s mother in lieu of agreeing the facts concerning the disclosures made by the complainant but that it was also on the cards that the prosecution would challenge at least the reliability of the mother’s memory of the conversations. Further, the prosecution is now declining to tender the transcript of the applicant’s incomplete evidence from the sixth trial. 13 The prosecution otherwise declined to adduce any evidence of the circumstances in which the original agreements were made, why they were wrong, 2 Park (a pseudonym) v The King [2022] SASCA 132. -- 4 of 84 -- [2025] SADC 40 3 inappropriate or otherwise ought not be maintained, and the matters taken into account when making the decision not to adhere to agreements that had been put to two consecutive triers of fact in this Court and upon which those triers of fact were to be or were invited to determine the applicant’s guilt or innocence. 14 The situation in which the applicant now finds himself because of the prosecution’s decision to withdraw from the agreements is that his ability to establish the prior disclosures made by the complainant to her mother, to which the mother deposed with some precision in earlier affidavits as reflected in the facts agreed by the prosecution, has been substantially compromised. The making of and adherence to the agreements by the prosecution at the previous two trials had the consequence that the mother did not give evidence at a time when the false allegations made by the complainant were clearly fresher in her mind. 15 The making of the agreements at the two previous trials of the charges also had the effect of rendering it uncontroversial that the complainant in fact made the false allegations recounted in her mother’s affidavits. 16 The issue arising on this application is whether the prosecution’s decision to renege on the agreements it had previously made at two trials of these charges in relation to or as reflected in D12, D13, P16 and P18 would render the continuation of the proceedings an abuse of process, either because a trial at which these agreements are not adhered to would be so unacceptably unfair or unjustifiably oppressive to the applicant or would bring the administration of justice into disrepute. 17 In the very unusual and exceptional circumstances of this case and bearing in mind the tortured litigation history it has, I am satisfied that the prosecution’s refusal to adhere to the agreements it previously made and invited a judge of this Court to act upon, in combination with the deterioration in the mother’s memory, make it unfair, oppressive or unjust to prosecute the trial of these charges without honouring the agreements. By entering into and maintaining the agreements at the last two trials of the charges, the parties created a state of affairs which made it unnecessary for the mother to be called and hence denied the applicant the opportunity to secure evidence from her when her memory about the disclosures was uncompromised. Having previously accepted that the disclosures were in fact made by the complainant, and having invited a judge of this Court to make that factual finding, the prosecution of these charges (1) absent the agreements (2) knowing the mother is now unlikely to be able to remember the disclosures and (3) proposing to challenge any evidence the mother did give about the disclosures, is unjustifiably oppressive or unfair. 18 I would further observe that there was nothing unusual or irregular about the decision to agree that the complainant had made the disclosures, in accordance with the mother’s anticipated evidence. It is common-place for the prosecution to agree that a witness has made statements out of court that are inconsistent with their evidence in court or which otherwise demonstrate the telling of a lie. That is -- 5 of 84 -- [2025] SADC 40 4 often a pragmatic and expeditious course to take where the witness to whom the statement was made or the lie told is considered to be credible and reliable. In the absence of evidence to the contrary, I am unable to conclude that the making of the agreements was either factually or legally inappropriate. 19 There is, in addition, a significant public interest in holding prosecuting and investigative authorities to agreements or representations they make absent good reason not to, particularly where others involved in the criminal justice system have relied to their detriment on those agreements or representations. That is what transpired in this case. In circumstances where the prosecution has declined to put on evidence explaining why it will no longer maintain the agreements, it would bring the administration of justice into disrepute for the Court to permit a trial to be run at which the prosecution will seek to controvert facts it previously accepted to be established. 20 Conversely, I am not satisfied that the refusal to tender the applicant’s incomplete evidence in chief from the sixth trial, whether viewed in isolation or in combination with the other complaints advanced by the applicant, gives rise to an abuse of process. For reasons I will come to, I consider that the applicant’s evidence was self-serving and thus inadmissible. Whilst the prosecution previously agreed to tender the evidence, doing so conferred on the applicant a positive and unjustifiable forensic advantage. The tender of the evidence was not necessary for the prosecution to discharge its responsibility to put before the trier of fact all cogent, available and admissible evidence and I am not satisfied, given the content of the applicant’s evidence, that it would otherwise amount to an abuse of process for the prosecution not to tender the record of his evidence at the eighth trial. 21 I would stay the proceedings until such time as the grounds upon which I consider an abuse arises are remedied. The nature of the order I make is appropriately viewed as an order for a conditional stay. It is within the power of the prosecution to discharge the condition on which the stay is granted. If the prosecution elects to do so, the trial will proceed in the usual way. History of the proceedings and the agreements 22 It is necessary to set out in some detail the previous agreements made between the parties and the conduct of the prosecution case at the sixth and seventh trials together with the circumstances in which the prosecution has indicated its intention to withdraw from the agreements, to the extent they are established by the evidence put before me on the application. The applicant argues that the very unusual history of this matter, together with the thought and attention that went into the agreements made on behalf of the Director at the sixth and seventh trials, is an important part of the context in which the consequences of the departure from the agreements are to be evaluated. -- 6 of 84 -- [2025] SADC 40 5 The sixth trial – Exhibits D12 and D13 23 The genesis of the agreements can be traced back to a passage of cross- examination of the complainant at the sixth trial by senior counsel then acting for the applicant in which the complainant was asked whether she had sex with her previous foster brother, LN, and whether she told her mother on a number of occasions that she was having sex with LN. The complainant denied both propositions. I set out the relevant passage in full: Q With respect to [LN], you never had any sort of sexual relationship with him, did you. A No. Q There was never any sex between you and [LN] - A No. Q - was there. A No. Q That never happened. A No. Q Your mother is [DB], isn't she. A [DB], yes. Q [DB], sorry. That's a yes. A Yes. Q That's your biological mother. A Yes. Q You told her on a number of occasions, didn't you, that you were having sex with the Ns’ son, [LN]. A No. No. Q You said that to her in about 1999, didn't you. A No. Q And you said that to her again in 2002, didn't you. A No. It never happened. Q Pardon. A It never happened. -- 7 of 84 -- [2025] SADC 40 6 Q Well, I know that it never happened, but you said to your mum that it did, didn't you. A No. No. Q You said specifically to your mum that you had had sex with [LN] - A No. Q - didn't you. A No. Q If you can be shown this document. I want you to read that document. You've read the document. A Yes. Q Having read that document, do you agree that you told your mum that you had had sex with the Ns’ son, [LN]. A No. Q Do you agree that you told her that in about 1999. A No. Q Do you agree that you said to your mother that it was a mutual thing. A No. Q And that you were not upset by it but you were just telling your mum about it. A No. Q If you told your mum that you had had sex with [LN], that would not be true, would it. A If I told her that - Q If you had said to your mum that 'I had sex with [LN]’, that wouldn't be true, according to you. A That's right. Q If you had said that to your mum, that would be a lie to your mother. A Yes. Q If you said it to her, you would be lying to her about having had sex with your foster brother. A Yes. Q And that's exactly what you did do, you did tell your mother that, didn't you. A No. -- 8 of 84 -- [2025] SADC 40 7 24 It can be seen that in this passage of cross examination, the complainant: 1. Denied having a sexual relationship with LN. 2. Denied telling her mother, DB, on numerous occasions that she was having sex with LN. 3. Denied telling her mother in 1999 and 2002 that she had sex with LN. 4. Agreed that if she had told her mother she had sex with LN, that would be a lie. 25 The document shown to the complainant during this part of the cross examination was subsequently received and marked for identification as D12, the prosecutor having taken an objection to the tender of the document. 26 The admissibility of the document was revisited later in the course of the trial and senior counsel for the applicant pressed its tender. Counsel then appearing for the prosecution, Mr Wilson, informed the trial judge (Cuthbertson DCJ) that he did not object to a redacted version of MFID12 being tendered.3 He explained the prosecution’s considered position with respect to the tender of the document this way: MR WILSON: I don't object to a redacted version of the MFI being tendered that removes the first six lines which are a sort of hearsay commentary by the complainant's mother to the case worker about general behavioural traits that the mum believes that [AW] has. So, I say it shouldn't be tendered as a means to get in that sort of - her fairly damning view of her daughter's character, which isn't required to establish what defence want to establish which is that, contrary to what she said in evidence, [AW] told her mother previously about an allegation or made an allegation of sex with one of the foster carers' sons. To supplement that being tendered in a redacted form, the prosecution would be prepared to agree a fact that makes some reference to the content of [DB], the mother's third statement, dated 1 February 2018. This is the statement that was taken effectively at the request of Judge Muscat at the first trial. 27 After some discussion about the possibility of MFID12 being tendered pursuant to s 53 of the Evidence Act 1929 (SA), counsel for the prosecution had a further exchange with the trial judge: MR WILSON: My preference would be to agree facts that cover what defence want in and sort of bypass those provisions of the Evidence Act so that the jury have some information before them that '[DB] is the biological mother of the complainant. If called to give evidence, she would say this' and - HIS HONOUR: Maybe 'If called to give evidence she would say this'. I don't know. I had in mind it might be that it's an agreed fact that this is a standard document filled in by an employee of the Department of Human Services when they have contact with a member of the public and that the workers are trained or enjoined or requested to make sure of the 3 VDD1, Affidavit of Patrick Deegan, PD1, pp 10-11. -- 9 of 84 -- [2025] SADC 40 8 accuracy of the material they record and only record material that they're certain is correct, particularly if it involves serious allegations. I don't know. I'm just raising these matters. That's all I'm doing. MR WILSON: Yes. My friend might be in a better position to indicate whether there is any room to move on the removal of the first six lines of that entry. That's something that I would press to be argued if we can't come to some agreement about that, but I don't have any problem, as I've let my friend know, in presenting some facts before the jury from which they can - HIS HONOUR: There is nothing to stop you from calling - MR BARKLAY: Jean Kenny. HIS HONOUR: Who's [DB]? MR WILSON: She's the biological mother and she's the one whose statement I have referred your Honour to. So, when I was alluding to the fact of what she would say if called, I was referring to what she said on this specific topic at paras.3 and 4 of her third statement dated 1 February 2018. So, in effect, a combination of what she would say she did, namely, that - HIS HONOUR: There is nothing to stop you from calling [DB] if there is any clarification needs doing. 28 I interpolate that in paragraphs 3 and 4 of DB’s affidavit of 1 February 2018 (VDD3 on this application), to which Mr Wilson was referring, DB had written: 3. I have been asked by Detective JOHNSON if I remember [AW] telling me she was in a ‘physical relationship’ with the [N’s] youngest son and that this was ‘by mutual consent’. I don’t have a memory of her saying this to me. 4. What I do remember is [AW] telling me that one of the [N’s] son, I don’t remember which one was touching her in the bath and it hurt. I remember [AW] indicating by putting her hands on her vagina area saying, “There”. [AW] would rock when she told me this. [AW] has told me this on more than one occasion. On one of these occasions she was telling me about the [N’s] son I remember she has come up close to me and whispered in my ear, “I don’t like him.” 5. I also remember that when the access visits ended [AW] would get quite upset and not want to go. If the [N’s] son was there she seemed to be even more distressed and would grab hold of me and it would take other people to pry her away from me. 6. I have on a number of occasions I have called Welfare and told them about what [AW] has told me. [AW] has had a number of Case Workers and I can’t remember who I told specifically. I would ask them to investigate but they didn’t want to know. 29 After the jury were sent home for the day to allow any revisions to the document to be implemented, there was further discussion between counsel and the trial judge about the effect of admitting the document pursuant to s 53 of the Evidence Act. The exchanges indicate that counsel for both parties had given careful consideration to their respective positions. -- 10 of 84 -- [2025] SADC 40 9 30 It appears that at the conclusion of the day’s sitting, counsel corresponded with each other via email in relation to MFID12 and agreed facts. In that correspondence, the prosecutor initially indicated that he had some reservations about the admissibility of MFID12 in light of the proposed agreed facts, and confirmed his position that he was ‘…not going to positively suggest that [the complainant] did not tell [DB] something about one of the [N] boys re: sex…’4 Ultimately, however, the prosecutor indicated his agreement to a revised version of MFID12 being tendered together with what became D13. In further correspondence with senior counsel for the applicant, the prosecutor reiterated ‘I do not propose to suggest to the jury that the note is a mistake or that they should doubt whether [the complainant] told her [DB] about sex with [LN].’5 31 When the trial resumed, senior counsel for the applicant informed the trial judge that an agreement had been reached between the parties and it was proposed that an amended MFID12 would be tendered as a business record and supplemented by agreed facts.6 It must have been contemplated by both parties that, upon its tender, D12 (in combination with D13) was capable of establishing not only that DB had told the social worker that the complainant said she had sex with LN; but also the underlying proposition – that the complainant had in fact told DB as much. That must follow because, in the context of the forensic dispute, evidence of what DB told the social worker was not relevant. What was relevant, in light of the complainant’s denials, was that she had told DB about having sex with LN. 32 I set out the content of the document that was received as D12: Date-Time Nature-Record of Contact 13/8/02 T/c to [DB] to see how things are going. Re [AW] telling her of having sex with Ns’ son [LN]. [DB] said [AW] first told her about this 3 years ago, then mentioned it again last year. Then recently mentioned it again. [AW] had said that it was “a mutual thing” and just mentioned it again “by way of information”, not because she was upset by it. 33 As to the possible conflict between D12 and what appears in paragraph 3 of VDD3, I was told by Mr Henchliffe KC who now appears for the applicant, that the terms referred to in VDD3 and which were put to DB by the investigator for 4 VDD2. 5 VDD2. 6 VDD1, Affidavit of Patrick Deegan, PD1, p 20. -- 11 of 84 -- [2025] SADC 40 10 comment were in fact derived from a different file note which was not tendered at the sixth trial.7 34 Returning to the trial, there followed discussion about what the jury should be told the document established: HIS HONOUR: Do you want me to - this is addressed to both of you - say to the jury that they can use the material contained in this to infer that [AW] told her mother that she'd been having sex with the Ns’ son, [LN], first mentioning it in about 1999? MR BARKLAY: Yes, your Honour. HIS HONOUR: You want me to tell the jury that? MR BARKLAY: Yes. HIS HONOUR: In fact, ultimately direct the jury that - MR BARKLAY: Yes. HIS HONOUR: - that's the use that can be made of it. MR BARKLAY: Yes. HIS HONOUR: What do you say? MR WILSON: I don't have any problem with your Honour - HIS HONOUR: That's correct, isn't it? MR WILSON: Yes. The culmination of the agreed facts - HIS HONOUR: Shall I go on and tell them - I'm not sure about this, but I think it's right - that it can't be used as evidence that [AW] did have sex with [LN]. MR WILSON: That would be right, your Honour. HIS HONOUR: The Act talks in terms of drawing inferences, doesn't it, I think, from memory? MR BARKLAY: Yes. I don't ask that your Honour say anything about that at the moment. HIS HONOUR: All right, I won't say anything about that. MR BARKLAY: But what your Honour said before in terms of what your Honour will tell the jury in terms of - HIS HONOUR: I will tell them that when they get it. MR BARKLAY: Thank you. 7 T82. -- 12 of 84 -- [2025] SADC 40 11 HIS HONOUR: So that still leaves the sticking point about the MFI exhibit being the one that is - you could hand up what one might describe as an unmarked copy and substitute that as MFI D12. MR BARKLAY: Yes. HIS HONOUR: Then tender the agreed facts and then seek to tender MFI D12 which I would permit to go in as evidence as a business record, telling the jury that they can use it to draw the inference that [AW] told her mother in about 1999 and repeated it, that she'd been having sex with - MR BARKLAY: [LN]. HIS HONOUR: - [LN]. 35 When the jury returned to court, D12 was admitted and a series of agreed facts, which became D13, were tendered. The agreed facts were: 1. Jean Kenny was employed by the Department of Human Services in South Australia (‘the Department’) from 1985 until November 2003. 2. Jean Kenny was a qualified social worker and worked in a number of offices in the metropolitan area. 3. Jean Kenny met [AW] when she was still in placement with the N family in Karoonda. 4. Jean Kenny was the Ns’ foster support person, but she did not have direct contact with [AW] while she was with the Ns’. 5. When [AW] went to live with the Popes, Jean Kenny became her case worker ([AW] was around 13 or 14 years old). 6. As [AW’s] case worker Ms Kenny was responsible for overseeing [AW’s] welfare. 7. The Department keep records in relation to children they care for during their placements. 8. Ms Kenny would make notes soon after she had contact with anyone who was involved in [AW’s] life. 9. The typed notes in Exhibit D12, made by Ms Kenny, form part of the business records of the Department. 10. It is important that conversations that include complaints of a sexual nature are accurately recorded. Ms Kenny understood the importance of keeping accurate records for the Department about children the Department cared for. 11. Exhibit D12 described as a ‘continuation sheet’ is a typed record of a telephone conversation between Ms Kenny and [DB] on 13 August 2002 about [AW]. 12. If called to give evidence, [DB] would say that she contacted the Department of Human Services on 13 August 2002 and relayed to Ms Kenny what [AW] had told [DB] about [LN]. -- 13 of 84 -- [2025] SADC 40 12 13. The typed notes of the telephone conversation referred to in exhibit D12 were made by Ms Kenny shortly after the conversation she had with [DB]. 14. The typed notes in exhibit D 12 made by Ms Kenny is an accurate record of the conversation she had with [DB]. 36 The source of agreed fact 12 would appear to be paragraph 6 of VDD3 but I note, in any event, that the prosecution’s position on this application is that I should infer that the agreements were made in accordance with instructions. 37 The trial judge then gave the jury a number of directions about the use to be made of D12 and D13, culminating with the following: Now ladies and gentlemen, you can use the evidence in the business record D12, if you want to, to find that the mother of the complainant told the social worker that the complainant had told her that she'd been having sex with [LN] and the relevance of it might be that the evidence of the complainant is that she never had sex with [LN] and she never told anyone she had sex with [LN] and here she is, if you accept the content of the note as a reasonable possibility, here she is saying what is a very serious allegation to make if it's not true, 'Me being underage, I've had sex, a very serious offence, with an adult' and you'll hear submissions at the end of the trial about it from both counsel if they wish to make submissions. It might be suggested to you that you shouldn't accept beyond reasonable doubt someone who's prepared to say 'I've been having sex with someone' who, if it's true, would be guilty of a very serious offence. So I hope that explains to you how you can use that evidence from the business record and that's how it gets before you other than through a witness because it is a business record. Yes, anything either party want me to amend or add in relation to that? 38 Thereafter, the prosecution closed its case and the applicant elected to give evidence. Before the applicant’s evidence in chief was completed, a mistrial was declared for reasons unknown to me. 39 To summarise the state of affairs at the close of the prosecution case in the sixth trial: the prosecution had agreed to the tender of the document initially marked MFID12 in revised form. The prosecution agreed further facts (D13) relating to the accuracy and reliability of the contents of what became D12. Agreed fact 12 was presumably incorporated to confirm the source of the information contained in D12 and to make good the proposition put to the complainant in cross examination, namely, that she had told her mother about having sex with LN, contrary to her denials.8 The seventh trial – Exhibits P16 and P18 40 It was in this context that the seventh trial proceeded in 2021 before a judge of this Court sitting without a jury. 8 The latter would seem to be an inference that could be drawn from the document, in accordance with s 53(1)(b) of the Evidence Act 1929 (SA). -- 14 of 84 -- [2025] SADC 40 13 41 Exhibits D12 and D13 from the sixth trial were tendered by the prosecution at the seventh trial, and so too was a transcript of the applicant’s incomplete evidence from the sixth trial (P16 at the seventh trial and VDD8 before me). 42 In the lead up to the seventh trial, counsel then appearing for the prosecution, Ms Harper, wrote to senior counsel for the applicant and his instructing solicitor about the way in which she proposed to conduct the trial: I write to advise that, as long as Judge Boylan orders that the complainant’s previously recorded evidence be played in this trial, I will not call any further witnesses like what occurred in the previous trial before Judge Cuthbertson. I am happy to agree the same facts that [Mr Wilson] did in the last trial but also propose that we agree the dates on which [AW] gave her evidence in chief and cross-examination that will be watched by His Honour. I am not prepared to have the transcript of Mr Pope’s evidence in chief provided to or read to His Honour. It is mainly self-serving and has not been tested by cross-examination. Feel free to contact me on my mobile if you wish to discuss the above. My number is […. … …]. 43 That is, in fact, how the prosecution case was conducted at the seventh trial, save that Ms Harper revisited her position as to the applicant’s evidence which, as I have said, was ultimately tendered as part of the prosecution case. There is no evidence before me about the circumstances in which, or why, Ms Harper revised her position as to the tender of the transcript. 44 In her final address, Ms Harper dealt with exhibits D12 and D13 on the premise that they established the complainant had lied to her mother about having sex with LN – a lie which the complainant denied telling – and offered submissions to mitigate the significance of the lie in the trial judge’s assessment of the complainant’s credibility and reliability. This drew an inquiry from the trial judge about exactly what was ‘proved’ in this respect: I suspect that Mr Barklay will focus much of his submissions to your Honour about saying that your Honour can't believe [AW] and what she's saying about the offending because she told a lie to her mother, [DB], when she was a 16-year-old girl about having sex with her foster brother [LN]. Can I make this submission about that aspect of the defence case? 16-year-old [AW] could have had a whole number of reasons at that point in her life when we know that she had just quit school at Coomandook, she had just left the Pope house and she had gone to live with her mother, who she said she had hardly seen, on her evidence, up to Queensland, a woman who you know she had very little to do with as a child. HIS HONOUR: Sorry to interrupt, but I probably have to hear from both of you on this at some stage - you may not want to address it immediately - precisely what is proved on this topic? MS HARPER: Yes, in my submission Mr Barklay had [AW] say that she and [LN] never had sex. The document that your Honour has is a record from a Families SA record. -- 15 of 84 -- [2025] SADC 40 14 HIS HONOUR: That's the small type? MS HARPER: Yes. HIS HONOUR: I don't think I've been taken to that yet. MS HARPER: It's D12. HIS HONOUR: Yes, I have that. MS HARPER: That should be read in conjunction with D13, which is statement of agreed facts in relation to Exhibit D12. HIS HONOUR: Yes, I've read that. MS HARPER: In my submission what those agreed facts and D12 does is it shows that [AW] wasn't truthful about when she said to her mother that she and [LN] had had sex, because she denied it in her evidence, and you have the agreed fact that if [DB] were called to give evidence she would say that [AW] had told her. HIS HONOUR: I'm a bit uncomfortable about that. That may well be what she would have said, I assume that she's been spoken to and if she were here to give evidence that is what she would say, but - MS HARPER: It's a lie about never having told her mother - HIS HONOUR: Is it agreed between you that I must accept that [DB] was correct in the account that she gave of her conversations with her daughter [AW]? MS HARPER: Your Honour doesn't have to accept that she was correct in that, and I see your Honour's point there. HIS HONOUR: From somewhere in here I take it this is tendered as a business record? MS HARPER: Yes. HIS HONOUR: What's the effect of it? I'll hear Mr Barklay on it too. Is the director asking me to accept this as proved: that on a number of occasions [AW] told her mother, [DB], that she had had sex with [LN]? MS HARPER: Yes. Staying on that topic though, it's my submission that there are many reasons why a 16-year-old [AW] - HIS HONOUR: Yes, you go back to that but I wanted to clear up first exactly what the director is asking me to accept as proved by those agreed facts taken together with the Exhibit D12, is it? MS HARPER: D12 and D13. Yes, that is the case. I can tell your Honour I've taken instructions on the matter, that is the position. HIS HONOUR: That's cleared that up. MS HARPER: On that topic then, as I was saying, there might well be many reasons why a 16-year-old [AW] said those things to her mother back then when, as we know, she had just left the Pope's house, she had been kicked out of school and she went to live with her mother, who she really had no relationship with. Your Honour might even think it was -- 16 of 84 -- [2025] SADC 40 15 a throwaway line that she said a few times to her mother, for whatever reason. She might have had many reasons to say that, but your Honour has heard that [AW] never did anything about the [LN] allegation. She didn't tell the authorities, she didn't tell the police. HIS HONOUR: There's no suggestion that there has been proved that she told a lie about unwelcomed sex, is there? MS HARPER: No, there's not, it's just that she told a lie about not having said something to her mother. HIS HONOUR: Yes, I see, I understand that. MS HARPER: It's my submission that really that doesn't affect her credibility in a great way at all. It's a very different thing saying something or being asked about what she said about something as a 16-year-old girl, which your Honour knows was never taken any further, to actually coming along in this trial, going to report it to the authorities and come along to give evidence-in-chief and to be cross-examined under oath in, firstly, her evidence-in-chief in August 2018, where she was cross-examined, she was then subjected to further cross-examination two years later, by Mr Barklay in August 2020. Coming along and giving evidence at two criminal trials, under oath, and having her account tested by two counsel, under cross-examination, is very different to forgetting that she's made a remark to her mother or lying about making or not saying anything about a remark that she's made to her estranged mother as a 16-year-old girl. I urge your Honour to consider that when assessing [AW’s] credibility and, importantly, whether your Honour is satisfied about whether [AW] is telling the truth about what we're dealing with in this trial, which is whether or not Matthew Pope offended against her in the way that she says. In my submission your Honour should give very little weight to the fact that she said that she didn't tell her mother anything about having sex with [LN]. It's two very different things and it's not a lie in her evidence that should cause your Honour to think that she is not a credible witness in the sense of the evidence that she's given as a whole. HIS HONOUR: Could she simply have forgotten it? MS HARPER: She could have. HIS HONOUR: Is there room for that or not? MS HARPER: She was emphatic that she said 'No', though, it wasn't 'I don't remember'. HIS HONOUR: So according to D12 she said it to her mother on three occasions? MS HARPER: Yes. HIS HONOUR: Once, most recently, when she was 16, again when she was 15 and the first time probably when she was 13. MS HARPER: Yes. HIS HONOUR: Thank you. 45 Any submissions made by Mr Barklay QC (as he then was) on this topic in his final address were not put before me on the application. -- 17 of 84 -- [2025] SADC 40 16 46 Following closing submissions in the seventh trial but before the trial judge delivered his verdict, a further affidavit was disclosed by the prosecution to those acting for the applicant.9 The affidavit was sworn by the investigating police officer and deposed to a conversation the investigator had with DB at the request of the prosecutor prior to the commencement of the seventh trial. The affidavit, and the investigator’s notes of her conversation with DB, had not been disclosed to those acting for the applicant before the seventh trial commenced.10 47 The affidavit of the investigator indicates that she had been asked to put four questions to DB for comment. The four questions, and the answers provided to the investigator by DB, which were recorded in handwritten notes, were as follows (noting that I have merged the questions and answers to make it easier to follow): At this time I asked her four (4) questions: (1) Did [AW] ever tell you about having sex with [LN]? Yes she did. (2) When was that? I think she told me when we were at the zoo trying to remember to remember how old she was [S] was there – pregnant [T] was 3 1993 Adelaide Zoo (3) How many conversations did you have about this? Almost everytime after we had access she would say in a wisper [sic] in my ear ‘I don’t like [LN]’, - ‘[LN] hurt me again’ What did he do? “Can’t tell you Its a secret” 1st time she told me, she said ‘winky/pinky’ put it in her pants …, she didn’t like it. bit young when older ‘that [LN] has sex I [sic] me. continued after he left home take he [sic] aside & have sex with her (4) Did you ever have a conversation with Families SA about this? Yes I told Welfare – Families SA DCP [MG] Anytime my kids told me anything I told Families SA 9 Affidavit of Patrick Deegan, [20]-[27]. 10 Affidavit of Patrick Deegan, [20]; T10. -- 18 of 84 -- [2025] SADC 40 17 48 I pause here to observe that it would seem from this discussion with DB having taken place before the seventh trial, that she was essentially ‘proofed’ on the topic of disclosures by AW. The information she provided was generally consistent with, albeit more expansive than, D12 and D13. 49 It appears that after the affidavit and notes were disclosed, the solicitor for the applicant made telephone contact with DB and obtained some further information from her. This information was then conveyed to Ms Harper who was asked to agree three facts. I set out the correspondence that passed between the parties which, as will be seen, indicates that the prosecution position initially was that no further facts would be agreed. That position ultimately changed: From: Patrick Deegan Sent: Sunday, 19 September 2021 12:15 PM To: Harper, Emily Cc: Heath Barklay Subject: R v Matthew POPE Dear Ms Harper, We refer to the above matter listed tomorrow morning for a Directions Hearing. Our office has now spoken with [DB]. We understand if called to give evidence [DB] would give evidence to the effect (in addition to that which was already agreed) that: • [AW] first told [DB] about [LN] abusing her when she was around 8 – 9 years of age. • [AW] would tell [DB] this on each occasion she had access visits. • The last time [AW] told [DB] about this was in 2008 (when [AW] was or around 22 years of age), which was the last occasion that they held a conversation and saw each other. In those circumstances, we would seek the Director’s position to agreeing the above facts as opposed to having the need to list the matter for further evidence. Would you please advise your position as to the same. As to the hearing tomorrow, we would propose the same be adjourned for seven (7) days for the Director to consider the position. Should you wish to discuss the above please do not hesitate to contact myself on […. … …]. Thank you. Regards, Patrick Deegan Senior Associate From: Harper, Emily Sent: Tuesday, 21 September 2021 4:13 PM -- 19 of 84 -- [2025] SADC 40 18 To: Patrick Deegan Cc: Heath Barklay Subject: RE: R v Matthew POPE Dear Mr Deegan, I refer to your email below regarding the matter of Matthew Pope and your proposal in relation to agreeing a number of facts about what evidence [DB] would give if she were called. I have taken instructions and the prosecution is not prepared to agree any of the matters that you have set out below. As there is no agreement, can you please advise what your application is regarding this matter. I will write to Judge Boylan this afternoon to advise him that I have now had the opportunity to take instructions on the matters that you raised and that we are still in discussions about the matter and what to do. Kind regards, Emily Harper | Prosecutor From: Harper, Emily Sent: Tuesday, 21 September 2021 6:00 PM To: Patrick Deegan Cc: Heath Barklay Subject: RE: R v Matthew POPE Dear Mr Deegan, Further to my email below, are you able to articulate what it is that you want to make of the proposed agreed facts? That would assist the prosecution in coming to a position in respect of what should occur next in relation to this matter. Kind regards, Emily Harper | Prosecutor From: Patrick Deegan Sent: Wednesday, 22 September 2021 3:22 PM To: Harper, Emily Cc: Heath Barklay Subject: R v Mathew POPE Dear Ms Harper, Further to our recent communications, I confirm I have recently spoken with [DB] via telephone. [DB] has advised if she were called to give evidence on the topic of [LN] she would say: 1. [AW] first told her about [LN] “touching her down there” when at the Adelaide Zoo whilst in company with [AW’s] older sister [S]. She ([AW]) said [LN] hurt her. -- 20 of 84 -- [2025] SADC 40 19 2. [AW] (on a later occasion) disclosed to [DB] that [LN] had sex with her. 3. [AW] would tell [DB] this regularly, on every visit she had at the time. 4. [AW] again told [DB] this [AW] had left the Popes care when she went to live with [DB]. (Reference to FAYS case notes). 5. [AW] last told [DB] that [LN] had sex with her in or around August 2008 whilst at the hospital. 6. [DB] specifically recall this event as she [DB] flew from Qld to South Australia to help [AW]. Regards, Patrick Deegan Senior Associate From: Harper, Emily Sent: Wednesday, 22 September 2021 5:06 PM To: Patrick Deegan Cc: Heath Barklay Subject: RE: R v Mathew POPE Dear Mr Deegan, Thank you for your email. I note that in a telephone conversation that I had with Mr Barklay last night, he understood and agreed with the prosecution’s position in respect of not agreeing the facts set out in your email to me on Sunday evening due to the way that they were framed. It would be of assistance to the prosecution to know what use you propose to make of the below facts. For example, are you wanting to agree facts that [AW] had told [DB] that she had been sexually abused by [LN] and she repeated that to [DB] on certain occasions, or are you wanting me to agree facts that [AW] told [DB] there was ‘sex’ between [LN] and herself and she repeated that to [DB] on certain occasions? I think that this needs to be clarified before we ask the investigating officer to take a statement from [DB] about her recollections of [AW] telling her about [LN]. Kind regards, Emily Harper | Prosecutor From: Harper, Emily Sent: Thursday, 23 September 2021 4:05 PM To: Patrick Deegan Cc: Heath Barklay Subject: [DB] Affidavit Attachments: [DB] – unsigned affidavit 23.9.21.docx -- 21 of 84 -- [2025] SADC 40 20 Dear Mr Deegan, An affidavit has been taken by the investigating officer from [DB] this afternoon. I have attached a finalised but unsigned copy to this email. [DB] lives in Queensland and does not drive so it was not able to be signed this afternoon. I am hopeful that she will be able to sign the affidavit tomorrow and I will send a copy of the signed affidavit once I have received it. Now that you have the affidavit, are you and Mr Barklay please able to indicate what parts of the affidavit you want agreed and for what purpose over email so that we can consider the matter before we are before His Honour again on Monday morning. Kind regards, Emily Harper | Prosecutor 50 The chain of correspondence demonstrates that the prosecution was initially reluctant to agree the facts foreshadowed by the applicant and, to this end, arrangements were made for a further affidavit to be taken from DB to explore the matters the subject of the correspondence. As Ms Harper’s final email suggested, a further affidavit sworn 27 September 2021 was in fact obtained from DB (VDD4). The content of this affidavit is, to my mind, of significant importance to the current application. The affidavit was obtained by the investigating officer and as will become apparent, it formed the basis of a further set of agreed facts (P18). In VDD4, DB deposed: 3. The first time [AW] told me about [LN] touching her was when she said he touches her with his winky or pinky and he hurts her and she pointed to her vagina. She spoke very quietly when she said this. This was when we were at the Adelaide Zoo, I remember [S] was there and she was pregnant. [T] was three so it was around 1993 and [AW] would have been 7 years old. I remember also it was in December and I had Christmas presents for all my children and also [To’s] birthday present as her birthday is in December. 4. Almost every access visit I had with [AW] which was once or twice a year until she was about 16 years old [AW] would follow me until she could get me on my own and she would whisper in my ear and say, [LN] hurts me, [LN] touches me. I would ask her where and she would say down there. 5. After the second time she told me she said ‘Don’t tell [J] mum’. 6. When [AW] was about 11 or 12 she told me that [LN] was having sex with her. I remember she spelt the word out. Rather than saying it she said S E X, she said it’s a secret. 7. [AW] did tell me again that [LN] was having sex with her it was when she came to stay with me in QUEENSLAND, [AW] was 16 years old. I don’t remember what the conversation was after this and I am not sure now if she was talking about it being current or in the past. 8. The last time [AW] spoke to me about having sex with [LN] was around August 2008, I think it was at Modbury Hospital. I had flown down from QUEENSLAND to SOUTH AUSTRALIA to help [AW] because she was depressed and very distressed. -- 22 of 84 -- [2025] SADC 40 21 51 Further correspondence passed between the parties in light of the affidavit. This correspondence led to additional agreed facts being drafted by the prosecutor11 and re-drafted by those acting for the applicant.12 52 The matter was subsequently called on before the trial judge and further agreed facts tendered (P18). In their final form, the agreed facts, which were derived from paragraphs 6, 7 and 8 of the further affidavit VDD4, provided: R v Pope – Agreed Facts 1. If called to give evidence, [DB] would say the following: a. When [AW] was about 11 or 12 [AW] told [DB] that [LN] was having sex with her. [DB] recalls this because she remembers [AW] spelling out that word rather than saying it. [AW] said S E X, [AW] told her it was a secret. b. [AW] told [DB] again about [LN] having sex with her. This was when [AW] went to live with [DB] in Queensland. [AW] was about 16 years old at the time. c. The last time [AW] told [DB] about her having sex with [LN] was in or around August 2008 at the Modbury Hospital. [AW] was 22 years old at the time. 53 Counsel for the prosecution made further submissions about the interrelationship between P18 and exhibits D12 and D13 and, after reminding the trial judge about the passage of the complainant’s cross-examination in the sixth trial which I have earlier set out, the following exchange took place: MS HARPER: And it goes onto p.103. The cross-examination was about Mr Barklay asking [AW] whether or not she recalled or whether she did tell her mother, [DB], about having sex with [LN] on a number of occasions, and your Honour will recall that [AW] said that she never did. HIS HONOUR: Never said that? MS HARPER: Never said that. And further, she never - it would be a lie if she had told her mother that her and [LN] had had sex. HIS HONOUR: She denied that she'd had sex with [LN]? MS HARPER: That's right, and she also denied ever saying to her mother about that. The agreed facts that are before your Honour as D12, which is a continuation sheet that was tendered as a business record from Families SA, it was a telephone note. HIS HONOUR: I remember that. MS HARPER: And also D13, there was an agreed fact about if [DB] had been called to give evidence, what she would have said, and really P18 is some further disclosure came to light where there was a little bit more detail about what it was that [AW] had said. 11 VDD1, Affidavit of Patrick Deegan, PD11 (p 55). 12 VDD1, Affidavit of Patrick Deegan, PD12 (p 56). -- 23 of 84 -- [2025] SADC 40 22 HIS HONOUR: So the prosecution does not dispute that the complainant said these things to her mother? MS HARPER: That's right. And it's solely a matter that your Honour needs to consider in respect of [AW’s] credibility, and whether that affects her credibility about what she says in respect of what Matthew Pope did to her. I really maintain my submission that I made to your Honour about this is things said by [AW] as a 16-year-old girl, and then again as a 22-year-old young woman off the cuff remarks to her mother who, on the face of it, they seem to have little contact with one another. And it's a very different thing making these remarks to her mother at that age compared to coming along to court, seeing these maters through, going to the police and giving evidence on a number of occasions. Your Honour has those different dates of the different trials in front of you, and it's something that shouldn't impact, in my submission, your Honour's finding [AW] as being a credible witness in respect to what she talks about Matthew Pope doing to her at the property at Coomandook. Unless I can assist your Honour any further, that's really all I propose to say. HIS HONOUR: No, I understand your position. 54 The applicant’s solicitor also made some supplementary submissions: The Court can be satisfied that on multiple occasions, over a period of at least a decade, that is commencing from the ages of 11 or 12, where [AW] prior to moving into the Pope's residence, up until at least the age of 22 years, [AW] made false allegations about having sex with a former foster brother. The prosecution case in this matter relies entirely on the credibility of [AW]; she is the sole [Crown] witness. The established evidence before the court is that she has lied over the space of a decade about having sex with that former foster brother. The established evidence is that the lie continued into adulthood, and it's not a could have been that she forgot about this allegation and that she was emphatic in her denial, and that can be found at transcript P15, transcript 82 line 36. We say that the evidence on this matter is highly relevant when assessing the credibility of [AW]. It is demonstrative of a disposition to concoct the allegations of a sexual nature against a former foster brother. 55 The trial judge delivered his verdicts two days later, finding the applicant guilty on all counts. The position adopted by the prosecution at the sixth and seventh trials 56 It can be seen from the above summary that, at the sixth and seventh trials of the charges, the prosecution adopted the position that D12 was admissible and, in combination with D13, established that the complainant had told her mother that she had sex with LN – a statement the complainant had unambiguously denied making when cross-examined during the sixth trial. At the seventh trial, D12 and D13 were supplemented by the agreed facts, P18, which were drawn from further information provided by DB and which confirmed that on a number of occasions, the complainant had told her mother that LN was having sex with her.13 The 13 Despite the chapeau to the agreed facts it has not been suggested that their intended operation was limited to ‘this is what DP would say’ as opposed to those facts being established. Any such suggestion would be inconsistent with the submission made by Ms Harper. -- 24 of 84 -- [2025] SADC 40 23 sequence of events surrounding the generation of P18 tend to suggest that the affidavit VDD4 was obtained from DB as part of the prosecution’s ‘due diligence’ in relation to the proposed agreed facts being advocated by the applicant. The investigator having had an opportunity to speak with and obtain a further affidavit from DB, the prosecution agreed further facts drawn directly from VDD4. It is implicit in the formulation of agreed facts based on VDD4 that the prosecution accepted that what DB said about the disclosures was credible and reliable. 57 The position adopted by the prosecutors who appeared on the instructions of the Director of Public Prosecutions at the sixth and seventh trials appears to have been considered and, as Ms Harper said to the trial judge in the seventh trial, she had taken specific instructions that the prosecution’s position was that exhibits D12 and D13 proved that the complainant had told her mother on a number of occasions that she had sex with LN. When asked by Judge Boylan following the tender of P18 whether the prosecution disputed that the complainant made the comments to her mother, Ms Harper confirmed there was no dispute. It is further apparent that considerable care and attention went into the formulation of the agreed facts that became P18. 58 No evidence has been adduced by the prosecution on this application to suggest that the agreement which Mr Wilson made with senior counsel for the applicant at the sixth trial was unauthorised or without instructions. Rather, the prosecution’s position on this application is, as I have said, that I should infer that the prosecutors were acting on instructions.14 59 Further to this, on the evidence before me, the conduct of the prosecutors who appeared at the sixth and seventh trials cannot be described in any way as hasty or ill-considered. The facts were agreed based on affidavits sworn by DB and which had been obtained by the investigating police officer. Importantly, there is nothing to suggest that at the time the further affidavit VDD4 was sworn by DB, she was in anyway uncertain about the fact or content of the conversations she had with her daughter that were the subject of the agreement and the prosecution’s willingness to agree facts based on that affidavit indicate that it accepted her assertions of fact as credible and reliable. Self-evidently, were that not the case, the facts would not have been agreed. The appeal against convictions 60 Following the delivery of the trial judge’s verdicts, the applicant appealed his convictions on numerous grounds, including what were said to be inadequacies in the trial judge’s treatment of the complainant’s lies about sex with LN: Park (a pseudonym) v The King [2022] SASCA 132. 61 In allowing the appeal, the Court of Appeal traversed D12, D13 and P18, the position of the parties and the findings of the trial judge. 14 Prosecution’s Written Submissions, [16(a)]. -- 25 of 84 -- [2025] SADC 40 24 62 The Court observed at [31]-[33]: 31. As can be seen, in her evidence the complainant denied telling her mother that she had sex with LN in direct contrast with the statement of agreed facts. In those circumstances, the prosecution accepted that the complainant had been untruthful, that is, deliberately lied, when she told her biological mother that she had sex with LN. 32. The appellant submitted that the agreed facts demonstrated that the complainant had told repeated lies about having sex with an older foster brother, the same allegation as in this matter, and therefore she had a ‘disposition’ to tell les in a sexual context. The appellant relied upon the fact that she told the same lie on four separate occasions, the first occurring in 1999 and the last in or around August 2008. 33. The trial Judge was left with little alternative, given the agreed facts and the prosecution submission, but to accept that the complainant, despite her denials at trial, had told lies to her mother about having sex with LN. 63 It is not necessary for present purposes to explore in further detail the Court of Appeal’s analysis of the trial judge’s reasons for verdict. It is sufficient to observe that the Court concluded that the trial judge had failed to adequately explain how he dealt with the lies; why the lies did not impact on the complainant’s credibility and reliability such as to cause him to doubt her evidence; and how he was able to conclude that the complainant’s denials in court of telling her mother about having sex with LN were a product of forgetfulness and not a deliberate concealment of the truth. The applicant also succeeded in establishing that the trial judge had wrongly reasoned that the complainant had been consistent in her out of court statements about her allegations given the absence of any suggestion during cross examination of inconsistencies. 64 The Court of Appeal rejected the applicant’s contention that the verdicts were unreasonable or unsupported by the evidence, and dismissed the applicant’s invitation not to remit the matter for trial: 100. The appellant urged this Court, given the lengthy history of the matter, to consider not remitting the matter for a further trial if error was established. Practically, that is asking this Court to stay the prosecution. While the history is indeed unfortunate, the question of whether the case should be prosecuted again is a matter for the Director of Public Prosecutions to consider. 65 Of course, at that time, it was not known that the prosecution would subsequently seek to step away from the previously agreed position, on which the judge at the seventh trial was asked to decide the applicant’s guilt or innocence. The lead up to the eighth trial 66 The eighth trial was due to commence before me on 6 August 2024. 67 On 31 July 2024, counsel now appearing for the Director of Public Prosecutions, Ms Dunlop SC, advised Mr Henchliffe KC that she had been briefed to conduct the trial. Ms Dunlop advised that she intended to make an application -- 26 of 84 -- [2025] SADC 40 25 for the previously recorded evidence of the complainant from the sixth trial to be played and inquired whether there would be any objection to that application. 68 Mr Henchliffe wrote to Ms Dunlop addressing her inquiries and indicating that he had been proceeding on the assumption that the trial would be conducted in the same way as the seventh trial and, in particular, that the same exhibits would be tendered and facts agreed.15 69 On 2 August 2024, Ms Dunlop advised the applicant’s lawyers that she proposed to call DB, signalling her intention not to adhere to the agreed position. It is a little unclear but it may be that the decision not to agree to the tender of D12, D13 and P18 was not expressly communicated until 4 August 2024.16 70 On 5 August 2024, DB provided a further affidavit to the investigating officer over telephone. In her further affidavit (VDP5) which I have set out in more detail later in these reasons,17 DB deposed that she could remember AW telling her when aged 7 or 8 that LN hurt her and touched her ‘where her bathers go’. As to the disclosure in Queensland when AW was around 16, DB said AW mentioned LN and the word ‘sex’ but did not elaborate. She said she could not now remember what else was said. As to the Modbury Hospital disclosure, DB deposed that she was not 100% sure if AW spoke about LN on that occasion, but she may have. 71 Although no evidence of any response to Mr Henchliffe’s email was put before me on the application, it is common ground that Ms Dunlop is not prepared to agree to the tender of D12 or to agree the facts the subject of D13 and P18 and that decision was communicated by 4 August 2024 at the latest. Ms Dunlop proposes to call DB to give evidence and, potentially, to invite the trier of fact to approach her evidence with caution. As can be seen from the matters I have set out to this point, this proposed position is inconsistent with the way in which the Director invited the trial judge to proceed at the seventh trial, and inconsistent with the conduct of the prosecution case at the sixth trial up until the point of the mistrial. 72 Accordingly, the questions to be resolved on this application are whether the prosecution’s change in position with respect to D12, D13, P18 and, in contrast to the position taken at the seventh trial, the potential for a negative submission to be made with respect to the reliability of DB’s evidence about the conversations, is an abuse of process in that it will result in a trial that is unfair or unjustifiably oppressive to the applicant or would bring the administration of justice into disrepute, so as to require a conditional stay of the proceedings. Those questions must be addressed in the context of the further affidavit from DB – VDP5 – which, although not recanting anything she has previously deposed to, suggests that her 15 VDD1, Affidavit of Patrick Deegan, [32]-[33], PD15, pp 66-68. 16 VDD1, Affidavit of Patrick Deegan, [34]. 17 See [173]. -- 27 of 84 -- [2025] SADC 40 26 memory of the disclosures made by AW deteriorated significantly between 2021 (when VDD4 was sworn) and 2024 (when VDP5 was sworn). 73 The applicant advances a further contention in support of his application based on the intimated refusal of the prosecution to tender the transcript of the applicant’s incomplete evidence in chief at the sixth trial. It is convenient to deal first with this aspect of the application. The accused’s incomplete evidence 74 The applicant submits that the prosecution are obliged to tender the record of his incomplete evidence for two reasons. First, he submits that his evidence constitutes a ‘mixed’ statement such as to attract the operation of the Nguyen principles (Nguyen v The Queen (2020) 269 CLR 299), requiring the prosecution to tender the transcript unless there is good reason not to. 75 Secondly, the applicant argues that even if his evidence cannot be described as a ‘mixed’ statement, the prosecution is nonetheless obliged to tender the record because they had done so at the seventh trial and the presentation of the applicant’s evidence is necessary to comply with its prosecutorial duty. 76 The applicant also points to the prosecutor’s indication that she will not tender the transcript as evidence supporting his primary contention that the withdrawal from the agreements is the product of an improper tactical decision made by the prosecution to further its prospects of conviction. The decision in Nguyen (2020) 269 CLR 299 77 In Nguyen, Kiefel CJ, Gageler, Bell, Keane and Gordon JJ confirmed that a fundamental feature of our system of accusatorial and adversarial criminal justice is that whilst it is for the prosecution to determine the witnesses to be called and the evidence to be presented as part of a prosecution case, that determination must be made consistently with the obligation of the prosecution to fully and fairly put its case before the trier of fact.18 The majority held that the discharge of the prosecutorial responsibility requires the prosecution to adduce all cogent, available and admissible evidence, irrespective of whether it assists the prosecution case, unless there is good reason not to do so.19 78 Whilst acknowledging that the exercise of the prosecutorial ‘discretion’ as to which witnesses to call and which evidence to present is not reviewable, the majority observed that if the exercise of the discretion miscarries, the fairness of an accused’s trial may be compromised. Where a trial judge foresees an appreciable risk of a miscarriage in the event that a particular witness is not called or certain evidence is not to be presented as part of the prosecution case, it will be 18 Nguyen v The Queen (2020) 269 CLR 299, [26]. 19 Nguyen v The Queen (2020) 269 CLR 299, [36], [41]. -- 28 of 84 -- [2025] SADC 40 27 necessary to consider what, if any, remedy is required to avoid that risk materialising.20 79 Nguyen itself involved a refusal by the prosecution to tender the accused’s record of interview with police. The accused was charged with two offences of violence arising out of an altercation at a gathering during which he was said to have thrown bottles at the two alleged victims. In the course of his interview with police, the accused admitted throwing the bottles but claimed to have been acting in self-defence. Accordingly, the accused’s interview with police constituted a ‘mixed’ statement and was admissible both for and against the accused. The jury at the accused’s first trial were unable to reach a verdict and at the commencement of the second trial, the prosecutor indicated that he did not propose to tender the interview on the basis that it would not assist the prosecution case and that the accused could give evidence of the matters about which he spoke in his interview if he chose to. That is to say, the decision at the accused’s retrial not to tender the interview was made for tactical reasons to enhance the prospects of a conviction. Counsel for the accused sought a stay of the proceedings, which led the trial judge to refer two questions to the Court of Appeal: was the interview admissible in the Crown case and, if so, was the Crown obliged to tender the interview. 80 The Court of Appeal answered these questions ‘yes’ and ‘no’ respectively. On appeal to the High Court, it was held that the prosecution was obliged to tender the accused’s interview to discharge its responsibility to fully and fairly present the prosecution case. 81 The plurality reasoned that as the interview constituted an admissible, mixed statement and there was no good reason for the prosecution not to tender it, the prosecutor’s intention to refrain from doing so for tactical reasons contravened the ‘…prosecutorial obligation respecting the presentation of the Crown case and disadvantaged the [accused].’21 By analogy with the principles developed in relation to the prosecution’s responsibility to call all material witnesses as a subset of the general duty of the prosecution to present its case conformably with the dictates of fairness, the plurality confirmed that the prosecution were obliged to present all cogent, available and admissible evidence in furtherance of its function of fully and fairly presenting the prosecution case, unless there was good reason not to.22 82 This last component of the scope of the duty, as formulated by the plurality, is important because it recognises that the duty is neither absolute nor unqualified: There may be circumstances where it would be unfair to an accused to tender a record of interview, for example where the accused has refused to comment. In such a circumstance the omission of that evidence is justified. But where an accused provides both inculpatory and exculpatory statements to investigating police officers, it is to be expected that the 20 Nguyen v The Queen (2020) 269 CLR 299, [66] (Edelman J). 21 Nguyen v The Queen (2020) 269 CLR 299, [46]. 22 Nguyen v The Queen (2020) 269 CLR 299, [36]-[41]. -- 29 of 84 -- [2025] SADC 40 28 prosecutor will tender that evidence in the Crown case, unless there is good reason not to do so, if the prosecutorial duty is to be met. 23 (emphasis added) 83 What may amount to ‘good reason’ not to present evidence will obviously require a fact specific examination. However, the joint reasons confirm that a decision made by a prosecutor to refrain from calling a witness or presenting evidence in order to preserve or enhance the prospects of conviction is a necessarily flawed one:24 A prosecutor acting in accordance with the responsibilities of their office is not to be expected to be detached or disinterested in the trial process. A prosecutor is to be expected to act to high professional standards and therefore to be concerned about the presentation of evidence to the jury. It is to be expected that some forensic decisions may need to be made. It is not to be expected that they will be tactical decisions which advance the Crown case and disadvantage the accused. In Ziems, Fullagar J observed that in that case the object of not calling a vital witness could only have been to deny the other party the ability to cross-examine him. Whilst the creation of a tactical advantage might be permissible in civil cases, in criminal cases it may not accord with traditional notions of a prosecutor's function, his Honour said. In Whitehorn, Deane J said that the observance of traditional considerations of fairness requires that prosecuting counsel refrain from deciding whether to call a material witness by reference to tactical considerations. It will be obvious that a decision by a prosecutor to refuse to tender a mixed statement so that the accused is forced to give evidence falls into this category. 84 Although other members of the Court were unwilling to express the duty of the prosecution in the same terms,25 all members of the Court accepted that the responsibility of the prosecution to conduct its case fairly and fully would be contravened by the prosecutor’s decision not to tender the mixed statement in the circumstances and for the reason advanced. 85 The parties did not address at length whether the discussion of principle in Nguyen, which concerned mixed statements made by an accused in the course of a police interrogation, applies equally to evidence given on oath by an accused at a previous trial but there is no reason to think it would not. Indeed, as the plurality said at [37] and [39], rejecting the submission of the Crown that previous decisions of the High Court concerning the prosecution’s responsibilities were limited to the approach to be taken to the assessment of a failure to call a material witness: The respondent to this appeal sought to distinguish these and other cases on the basis that they concerned decisions whether to call material witnesses, the implication being that mixed inculpatory and exculpatory statements made by an accused when interviewed by police about an offence are not subject to the same or similar considerations. The simple answer to that submission is that what was said in cases such as Richardson and Whitehorn about the responsibilities of a prosecutor apply by analogy. They apply to the tender of all evidence which may properly and fairly inform the jury about the guilt or otherwise of the accused. As Dawson J said in Whitehorn, the prosecutorial obligation to call all witnesses is but an aspect of "the general obligation which is imposed upon a Crown Prosecutor to act fairly in the discharge of the function which he performs in a criminal trial. That 23 Nguyen v The Queen (2020) 269 CLR 299, [41]. 24 Nguyen v The Queen (2020) 269 CLR 299, [45]. 25 Nguyen v The Queen (2020) 269 CLR 299, [48]-[50] (Nettle J); [62]-[67] (Edelman J). -- 30 of 84 -- [2025] SADC 40 29 function is ultimately to assist in the attainment of justice between the Crown and the accused." … What was said in Soma should be understood not just as a caution to prosecutors about being selective but rather as a reminder about the prosecutorial obligation to present all available, cogent and admissible evidence. Cases involving the omission of a vital witness may provide somewhat more stark examples of a failure properly to exercise that discretion than a mixed statement given by an accused in a police interview, but the latter may have just as important an impact on the outcome of the trial and the need for a new one. It was considerations of what is necessary for the proper presentation of the prosecution case which led Hayne J to say in Mahmood v Western Australia that: "If there is admissible evidence available to the prosecution of out-of-court statements of the accused that contain both inculpating and exculpating material, fair presentation of the prosecution case will ordinarily require that the prosecution lead all that evidence." 86 The effect of the joint reasons in Nguyen may be said to be that if a record of the incomplete evidence given by the applicant at the sixth trial is admissible in the prosecution case, the obligation to present all cogent, admissible and available evidence would require the tender of the applicant’s evidence unless there was good reason not to do so. 87 As the plurality framed the extent of the prosecution’s duty by reference to the availability of admissible evidence, it is necessary to address whether the record of evidence given by the applicant at the sixth trial would be admissible at the instance of the prosecution. If the evidence is not admissible on the prosecution case, there could not, in my view, be any obligation to tender it. The admissibility of mixed and self-serving statements 88 It is well-established that a mixed statement made by an accused to police during the course of an interview or interrogation, for example, is admissible at the instance of the prosecution. The admissibility of such a statement essentially derives from those features of the accused’s comments that can be described as incriminatory and hence against interest, justifying the reception of the out of court statement pursuant to the exception to the hearsay rule for ‘admissions’.26 89 However, in recognition of the unfairness that can arise where the inculpatory elements of such a statement are admitted in isolation, where the prosecution wish to rely on an admission made within a mixed statement, it may not be selective as to which portions of the statement go before the trier of fact:27 the whole of the accused’s statement must be put in and can be used both for and against the 26 R v Quist [2017] SASCFC 37, [164] (Blue J); R v Golubovic [2016] SASCFC 144, [117] (Blue J). 27 Mahmood v Western Australia (2008) 232 CLR 397, [39]; Nguyen v The Queen (2020) 269 CLR 299, [27]; Barry v Police [2009] SASC 295, [67]. -- 31 of 84 -- [2025] SADC 40 30 accused. The self-serving or exculpatory answers given by an accused in a mixed statement can be used for a testimonial purpose.28 90 It follows from the approach taken in Nguyen that, ordinarily, the proper discharge of the prosecutorial duty to present its case fully and fairly, will require the tender of an accused’s mixed statement unless there is good reason not to do so. 91 Where what is in issue is an entirely self-serving statement of an accused, the position is less clear. In R v H, ML [2006] SASC 240 at [25]-[27], Vanstone J said: I turn to the question of principle. Statements made out of court, including by the accused person, are, prima facie, hearsay. However, in a criminal trial the prosecution can tender a statement of a defendant where it is said to contain admissions or other incriminating statements. Where such a statement contains exculpatory material as well – referred to as a “mixed statement” – the prosecution is obliged to tender the whole statement. The material goes in as an exception to the hearsay rule. The jury is entitled to treat the various parts of it as being of differing weight: Jack v Smail [1905] HCA 25; (1905) 2 CLR 684, 695; Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573; Spence v Demasi (1988) 48 SASR 536, 540; R v Collie [2005] SASC 148; (2005) 91 SASR 339; Duncan (1981) 73 Cr App R 359. The exculpatory parts go in not merely to provide a context to the admissions, but as some evidence of the facts stated: Duncan, Spence v Demasi at 541. However, if the statement contains only self-serving material then it is not admissible at the instance of the accused: Callaghan v The Queen [1993] QCA 419; [1994] 2 Qd R 300. It is probably admissible if tendered by the prosecution. Indeed in this jurisdiction it has been for some years customary to tender as part of the prosecution case any response made by the accused when first “taxed with the allegations” by police.29 92 In Barry v Police [2009] SASC 295, Kourakis J (as he then was) considered the basis upon which the self-serving components of a mixed statement made by an accused were admissible and whether the prosecution was obliged to tender a mixed statement. His Honour also addressed the admissibility of entirely self- serving statements made by an accused and said at [67]-[68]: The survey of the authorities undertaken by Cox J shows clearly enough that self-serving statements are admissible, and have probative value, only when introduced as part of the “Crown package”. If the prosecution chooses30 not to lead evidence of incriminatory statements there is no relevant unfairness to the accused in the exclusion of his or her self- serving exculpatory statements. There is therefore no arbitrariness or unfairness in the operation of the common law principle. It may be a matter of “happenstance”, as Grove J observed in Rymer, as to whether an accused makes an incriminatory, exculpatory or mixed statement, but the only reason for the admission of the exculpatory part of a statement is to ensure the fair use of the incriminatory statement on which the prosecution relies. If the 28 Spence v Demasi (1988) 48 SASR 536, 541; Nguyen v The Queen (2020) 269 CLR 299, [23]-[24]. 29 The suggestion that, as a matter of practice, prosecutors would tender any response made by an accused when ‘first taxed with the allegations by police’ was disputed by the prosecution in R v Helps (2016) 126 SASR 486 at [25]. Kelly J there remarked that the ‘practice referred to by Vanstone J may well have changed over recent decades’. 30 This observation would need to be understood in the context of Nguyen. -- 32 of 84 -- [2025] SADC 40 31 incriminatory statement is not led, the rationale for the admission of the exculpatory part of the statement disappears. In my view it would be anomalous to require the prosecution to put before the Court as probative material the self serving assertions of the defendant, whom it very obviously, does not consider to be a witness of truth. 93 In R v Helps (2016) 126 SASR 486 at [29] and [383]-[390], two members of the Court of Appeal expressed general agreement with the analysis of Kourakis J in Barry. 94 In R v Golubovic [2016] SASCFC 144 at [117], Blue J said: The reason that inculpatory statements by an accused during an interview or conversation are admissible is that an admission is an exception to the hearsay principle. If regard were had only to the basis of admissibility, exculpatory statements made during the course of the same interview or conversation would not be admissible because they are merely self- serving or “prior consistent statements”. However, while purely self-serving statements in the absence of any admission are not admissible, it is now clearly established that evidence of exculpatory statements made during the course of an interview or conversation which contains an admission and which is tendered by the opponent is admissible. The modern rationale for this appears to lie mainly in the principle that evidence of the whole of an interview or conversation should be received rather than selective parts as a matter of fairness, because it is now accepted that the principle applies in civil as well as criminal cases. However, in criminal cases, the rationale might also include the difficulty juries would otherwise face in making the sophisticated distinction between use of the exculpatory parts to better understand the inculpatory parts on the one hand and use of the exculpatory parts as evidence in their own right on the other hand. (citations omitted) 95 As the remarks of Kourakis J and Blue J make plain, the anchor for the admission of the self-serving elements of a mixed statement is the admissibility of the incriminatory comments made by the accused, in combination with the unfairness that can arise if those statements are presented in isolation from exculpatory comments that might provide important context. Because of the difficulties in juries differentiating between the use that can be made of inculpatory and exculpatory comments, the common law accepts that exculpatory comments in a mixed statement may also be used for their truth. 96 However, absent agreement between the parties, it is difficult to identify the basis upon which, for example, an accused’s entirely self-serving interview with police would be admissible at a subsequent trial at which the accused pleads not guilty. The admissibility of a self-serving statement cannot be justified on the same basis as a mixed statement. Whilst it may be that the prosecution can tender an accused’s entirely self-serving statement by way of agreement with an accused, the admissibility of such a statement absent agreement may be doubted unless there is some independent forensic relevance to the conduct or presentation of the accused or police in the course of the interview. Additionally, different views have -- 33 of 84 -- [2025] SADC 40 32 been expressed about the appropriateness of the prosecution leading evidence of an entirely self-serving statement made by an accused.31 97 To my mind, there can be no obligation on the prosecution to tender an entirely self-serving statement made by an accused (whether in the course of a police interview or by way of evidence given at a previous trial). To oblige the prosecution to tender an entirely self-serving statement, particularly one that takes the form of an accused’s evidence at a previous trial when the particulars of the prosecution case are well known to him or her, would be ‘… to use the prosecution as a mere conduit for the delivery by the defence of a contrived hearsay case’.32 On a retrial, the self-serving evidence given by an accused at a previous trial is no less hearsay if led to prove the truth of the facts asserted because it was given ‘in court’ and under oath, although such factors would obviously influence the weight to be attached to previous evidence that is admitted. 98 Contrastingly, and returning to this case, if the evidence given by the applicant can be characterised as a ‘mixed statement’, the prosecution would be obliged to tender it unless there was good reason not to. Can the accused’s evidence be described as a ‘mixed statement’ 99 Whether a statement is a mixed statement for the purpose of the Nguyen principles requires a fact specific examination. In R v Garrod [1997] Crim LR 445, it was held that: …where the statement contains an admission of fact which are significant to any issue in the case, meaning those which are capable of adding some degree of weight to the prosecution case on an issue which is relevant to guilt, then the statement must be regarded as ‘mixed’ for the purposes of the rule. 100 In R v Helps (2016) 126 SASR 486 at [395]-[396], Lovell J adopted the description of a mixed statement set out in Phipson on Evidence: ‘A mixed statement can be defined as one containing both exculpatory elements and an admission of fact which is significant to any issue in the case, that is capable of adding some degree of weight to the prosecution case on an issue which is relevant to guilt.’ This position, as adopted in England, is consistent with the prosecutor’s duty in Australia. It is, in my view, a matter for the prosecutor in any particular case whether the admissions of fact are “significant to any issue in the case” and are capable of adding “some degree of weight to the prosecution case and on an issue which is relevant to guilt”. That decision of the prosecutor must, of course, be consistent with the principles established in R v Apostilides. 101 In considering whether a statement of an accused is a ‘mixed’ statement, it is appropriate to take a broad and practical view of what may be regarded as against 31 R v Taheri [2017] SASCFC 92, [19]. 32 Barry v Police [2009] SASC 295, [70]. -- 34 of 84 -- [2025] SADC 40 33 an accused’s interest.33 However, that broad and practical approach must be taken with reference to the real forensic issues arising in the particular case and the materiality of any suggested ‘admission’ to those issues. The applicant’s evidence 102 When the sixth trial miscarried, the applicant had given reasonably lengthy evidence about his background, upbringing, education and the farming properties he and his family operated. This latter aspect of the applicant’s evidence traversed in considerable detail the nature and extent of his work on the properties throughout the relevant period which I gather was designed to highlight the limited opportunities that he had to commit the charged acts or to otherwise meet aspects of the complainant’s account.34 103 The applicant’s evidence had not reached the point of dealing with each of the incidents the subject of the charges, if that is what senior counsel for the applicant had within his contemplation during the evidence in chief. The applicant had however denied any sexual contact with the complainant before the trial miscarried. 104 The applicant acknowledged in his evidence that the complainant had lived with his family and that, when he returned from an agricultural exchange in Denmark in the latter half of 1996, his parents had ‘fostered’ her.35 The complainant was then around 15 years of age. The applicant said that the complainant occupied a downstairs bedroom at the farmhouse36 and that he spent time with her when he would come in from work – ‘we would have evening meals and everything together as a family, yes’.37 105 The applicant was asked about harvesting activities on the farm. He denied that the complainant ever drove a chaser bin during harvesting38 but acknowledged that he had taken her for a ride in a header ‘through the yard one day’, albeit not whilst actually carrying out harvesting duties. He denied that any sexual activity with the complainant took place in the header or more generally.39 I note from the Court of Appeal’s reasons that count 7 concerns an allegation that the applicant had sexual intercourse with the complainant in a header on an occasion when the complainant had been driving a chaser bin.40 33 See, eg, Dyers v The Queen (2002) 210 CLR 285, [118] (Callinan J). 34 Noting that I have not been provided with the transcript of the complainant’s evidence more generally. My understanding of the allegations is essentially drawn from the Court of Appeal’s summary. 35 VDD8, T178. 36 VDD8, T179. 37 VDD8, T179. 38 VDD8, T189. 39 VDD8, T192-193. 40 Park (a pseudonym) v The King [2022] SASCA 132, [12]. -- 35 of 84 -- [2025] SADC 40 34 106 Mr Henchliffe submitted that there were aspects of the applicant’s evidence that circumstantially supported the prosecution case and hence were against his interests: The complainant being at the farm for over a period of years where she initially slept, which was the room upstairs next to the defendant and things of that nature. There is nothing directly obviously admissions in relation to the elements of the offence, but there are some circumstantial aspects that would be considered I think are mixed. It obviously contains denials in relation to the offending that is alleged.41 107 In supplementary written submissions of the applicant, it was put that his evidence included matters ‘which support aspects of the prosecution case in a general way, including opportunity’.42 108 The prosecution characterised the applicant’s evidence as ‘entirely self- serving’.43 109 I do not accept that the evidence given by the applicant up to the point at which the sixth trial miscarried can properly be described as a ‘mixed statement’. As best as I can discern, the only answers given by the applicant which might even conceivably be said to be against his interests were: 1. his acknowledgment that the complainant had been in a header with him on one occasion, albeit, it seems, in a very different context to that alleged by the complainant in support of count 7; 2. that the complainant lived in the family home and occupied a particular bedroom; 3. the applicant spent time with her. 110 There is nothing to suggest that (2) and (3) were seriously contested issues prior to the applicant giving evidence.44 111 Equally, I do not accept that a concession by the applicant that the complainant had been in a header with him at some unspecified point in time and in a different context to that in which count 7 was alleged to have occurred, could realistically be seen as a material admission, even applying the broad and practical approach I have indicated it is necessary to take. 112 Further, the stage to which the applicant’s evidence had progressed at the time of the mistrial is also relevant. He was yet to complete his evidence in chief. There had been no testing or even exploration of his version of events which, in any event, and apart from a bare denial of sexual contact with the complainant generally or in a header, had not yet turned to the specifics of the allegations. The 41 T78-79. 42 Applicant’s Written Submissions, 13 March 2025, [48]. 43 Prosecution’s Written Submissions, [30]. 44 VDD8, T173. -- 36 of 84 -- [2025] SADC 40 35 applicant had been asked questions only by his counsel and which were clearly designed to develop a favourable impression of the applicant’s character and to leave the jury with a doubt as to his guilt. 113 Viewed in its entirety, I do not consider that the applicant’s evidence can properly be described as a ‘mixed’ statement so as to engage the Nguyen principles. 114 If I am wrong and the applicant’s evidence can be described as ‘mixed’, there are good reasons for the prosecution not to tender the transcript of his account. As I have said, the applicant’s evidence had not advanced beyond generally introductory matters. He had not been subjected to any adverse or probing questioning by opposing counsel. No scrutiny had yet been applied to the applicant’s evidence. If the applicant made any statement against his interest, it was in the context of incomplete evidence and was so minor and of no real forensic consequence, that it cannot be said tendering the record of his evidence is indispensable to the attainment of a fair trial, or necessary to ensure the prosecution discharges its duty. 115 Nor do I accept that the conduct of the prosecution in tendering the transcript at the seventh trial supplies a basis (whether by itself or in conjunction with the position taken as to the agreed facts) to conclude that the refusal to do so at the eighth trial would warrant a stay of the proceedings. 116 On my analysis of the applicant’s evidence, the tender of the record of his incomplete evidence in chief at the seventh trial represented a positive advantage because it was, fundamentally, inadmissible as an entirely self-serving statement. The prosecution’s refusal to again confer an unjustified advantage on the applicant cannot, either by itself or in combination with the other complaints advanced by the applicant, give rise to actionable unfairness or an abuse of this Court’s processes. 117 Whether this particular change in the prosecution’s position lends any support to the applicant’s contention that the abandonment of the agreements represents an improper tactical manoeuvre is a matter to which I will return in due course. The power to stay proceedings 118 I return then to the primary plank of the applicant’s argument, namely, that the proceedings ought to be stayed because the prosecution’s unwillingness to agree to the tender of D12 and the facts incorporated into D13 and P18 at the sixth and seventh trials, is productive of unfairness, oppression or otherwise amounts to an abuse of process. 119 It is well established that the circumstances which might give rise to an abuse of process are neither closed nor fixed. In Ridgeway v The Queen (1995) 184 CLR 19 at 75, Gaudron J said, in a passage subsequently endorsed by a majority of the -- 37 of 84 -- [2025] SADC 40 36 High Court in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at 267: Abuse of process cannot be restricted to ‘defined and closed categories’ because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of ‘abuse of process’ is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ or ‘productive of serious and unjustified trouble and harassment’. 120 An abuse of process may arise where the continuation of proceedings would result in an unfair trial. However, even where a fair trial can be had, the proceedings may be productive of such unfairness or oppression to a party as to amount to an abuse of process. That may be so where the continuation of the proceedings to verdict would be incongruent with the ‘normative structure of the Australian legal system’.45 Proceedings that would bring the administration of justice into disrepute,46 whether because of a particular characteristic or feature of the proceedings or the conduct of a party (such as instituting the proceedings for an ulterior or collateral purpose), may also be an abuse of process.47 121 In PNJ v The Queen (2009) 83 ALJR 384 at [3] the High Court observed that whilst it is not possible to exhaustively define what constitutes an ‘abuse of process’: …many cases of abuse of process will exhibit at least one of three characteristics: (a) the invoking of a court’s processes for an illegitimate or collateral purpose; (b) the use of the court’s procedures would be unjustifiably oppressive to a party; or (c) the use of the court’s procedures would bring the administration of justice into disrepute. 122 As Mason CJ explained in Jago v District Court (New South Wales) (1989) 168 CLR 23 at 28, the question to be considered on an application for a stay: …is not whether the prosecution should have been brought, but whether the court, whose function is to dispense justice with impartiality and fairness both to the parties and the community which it serves, should permit its processes to be employed in a manner which gives rise to unfairness. 123 What may constitute actionable unfairness in this context cannot be exhaustively stated for the reasons given by Deane J in Jago v District Court of New South Wales (1989) 168 CLR 23 at 57: 45 GLJ v Trustees of the Roman Catholic Church (2023) 97 ALJR 857, [18]. 46 For example, Rogers v The Queen (1994) 181 CLR 251; Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325. 47 Williams v Spautz (1992) 174 CLR 509. -- 38 of 84 -- [2025] SADC 40 37 The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience. Thus, it can be said, as a general proposition, that 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. One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his defence. Another is where impropriety on the part of the prosecution has concealed from an accused important evidence which would have assisted him in his defence. In each of those examples, the effect of the default or impropriety could ordinarily be dealt with by orders (e.g., adjournment, further particulars or new trial) which will avoid unfairness in a subsequent trial or retrial. It is, however, possible to formulate examples of cases in which the effect of default or impropriety on the part of the prosecution would necessarily be that any subsequent trial was unfair to the accused. Thus, one can envisage circumstances in which calculated and unreasonable delay on the part of the prosecution in bringing proceedings to trial had so unfairly and permanently prejudiced the ability of an accused to defend himself that no subsequent trial could be a fair one. 124 To similar effect are the recent remarks of Gageler CJ, Gordon, Jagot and Beech-Jones JJ in Willmot v Queensland (2024) 98 ALJR 1407 at [25]: Of course, the application of the concept of a fair trial will vary from case to case. As Gaudron J said in Dietrich v The Queen, what is fair “very often depends on the circumstances of the particular case” and “notions of fairness are inevitably bound up with prevailing social values”. The “inquiry as to what is fair must be particular and individual”. 125 It is, however, not a pre-condition to the grant of a stay that a conclusion is reached that an ‘…unfair trial will ensue unless the prosecution is stopped.’48 126 In GLJ v Trustees of the Roman Catholic Church (2023) 97 ALJR 857 at [17]-[18], the plurality explained the different forms of unfairness that will justify a stay: Every case in which a fair trial cannot be held will also involve such unfairness to or oppression of a defendant as to constitute an abuse of process. But such unfairness or oppression of a defendant as to constitute an abuse of process may exist even if a fair trial can be held… Whilst the understandable focus of the authorities in this area of discourse is the position of the party seeking the permanent stay, both concepts (necessary unfairness or such unfairness or oppression as to constitute an abuse of process) ultimately concern the congruence of the holding of a trial and rendering of a verdict with the fundamental norms underlying our legal system in the circumstances as they exist at the time of the application for the permanent stay. The position of the party seeking the permanent stay is relevant insofar as it exposes the congruence or incongruence of a trial and verdict with the 48 Williams v Spautz (1992) 174 CLR 509, 519; Walton v Gardiner (1993) 177 CLR 378, 395. -- 39 of 84 -- [2025] SADC 40 38 normative structure of the Australian legal system. A trial which will be necessarily unfair or which acts as an instrument of unfairness or oppression to a defendant cannot yield a legitimate verdict within that system and thereby the holding of the trial and rendering of a verdict will bring the administration of justice into disrepute. The doctrine of abuse of process is one element in a court’s armoury to protect the administration of justice, but it is to be understood as a measure of last resort to be exercised only in exceptional circumstances.49 127 In La Rocca v The King [2023] NSWCCA 45 at [34], Bell CJ surveyed what he considered to be uncontroversial principles concerning the exercise of the power to stay proceedings: (i) the remedy is an extraordinary one, only to be given in exceptional or extreme circumstances: R v Glennon (1992) 173 CLR 592 at 605; [1992] HCA 16 (Glennon); Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at [33]-[35] (Dupas); Strickland at [166]; (ii) such a description recognises the powerful social imperative for those who are charged with criminal offences to be brought to trial: Strickland at [106], see also at [166]-[167], [262]; (iii) notwithstanding this, the categories or circumstances in which the exceptional remedy of a permanent stay of criminal proceedings may be granted are not and should not be closed: Strickland at [99]; (iv) there is no “definitive category” of extreme cases: Dupas at [35]; (v) each case accordingly must be decided according to its own facts: Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 (Moti) at [60]; Strickland at [99], [246], [261]; (vi) a permanent stay of criminal proceedings may be appropriate where to refuse such a remedy would bring the administration of justice into disrepute: Rogers v The Queen (1994) 181 CLR 251 at 286; [1994] HCA 42; Moti at [10]; (vii) the administration of justice may be brought into disrepute in a number of different ways; (viii) one example which may warrant a permanent stay is the toleration of an unfair trial where there is a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”: Barton v The Queen (1980) 147 CLR 75 at 111; [1980] HCA 48; Jago v District Court (NSW) (1989) 168 CLR 23 at 34; [1989] HCA 46; Glennon at 605- 606; Dupas at [35]; (ix) other examples include where the manner in which the case was developed and brought: • was contrary to basic tenets of the Australian criminal justice system as may be embodied in statute: Strickland at [261], see also at [186]-[187]; 49 GLJ v Trustees of the Roman Catholic Church (2023) 97 ALJR 857, [17]; Willmot v Queensland (2924) 98 ALJR 1407, [16]. -- 40 of 84 -- [2025] SADC 40 39 • was contrary to the rule of law: R v Horseferry Road Magistrates’ Court; ex parte Bennett [1994] 1 AC 42 at 62, 67; R v Grant [2009] 2 SCR 353 at [67]; • was otherwise corrosive of the “trust reposed constitutionally in the courts”: Moti at [57]; or • presented a defect in process “so profound as to offend the integrity and functions of the court as such”: Strickland at [106]. (x) considerations beyond the immediate trial may bear upon confidence in the administration of justice: Strickland at [270]; Ridgeway at 75, 77-78, 86-87, 92; (xi) the administration of justice may be brought into disrepute where a miscarriage of justice would be the result of a failure to grant a permanent stay of proceedings: Glennon at 616, 624; (xii) the administration of justice may be brought into disrepute irrespective of whether the conduct affecting proceedings is deliberate or reckless, and the grant of a permanent stay of proceedings is not confined to cases of deliberate and knowing misconduct nor dependent upon the initial motivation or purpose of the offending party: Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10 at [135]; Strickland at [99]; (xiii) the administration of justice will not necessarily be brought into disrepute, however, where prejudice to an accused may be cured by, for example, directions to a jury or undertakings by prosecuting authorities, or where the prejudice is of a minor or venial nature: Strickland at [100]. 128 The legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime as well as the need to maintain public confidence in the administration of justice inform whether to grant a stay.50 In particular, these considerations can assist in the determination of whether what is complained of does in fact constitute actionable unfairness or oppression, or would otherwise bring the administration of justice into disrepute, as well as whether any such circumstances place the case within the truly exceptional category. 129 The doctrine of abuse of process is also concerned with ‘…the systemic protection of the integrity of the court within an integrated system of justice’.51 130 An example can be found in Moti v The Queen (2011) 245 CLR 456, a case in which Australian officials facilitated an unlawful deportation of a person from the Solomon Islands who was subsequently charged with and prosecuted for sexual offences on indictment. The High Court enumerated three propositions relevant to identifying whether the criminal proceedings were an abuse of process because of what the Australian officials had done or not done in connection with the act of deportation, the first two of which were peculiar to the facts and need not be repeated: 50 Walton v Gardiner (1993) 177 CLR 378, 395-396. 51 Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325, [249] (Edelman J). -- 41 of 84 -- [2025] SADC 40 40 The third basic proposition is that, as pointed out in the joint reasons of four members of this Court in Williams v Spautz, two fundamental policy considerations affect abuse of process in criminal proceedings. First, “the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike”. Secondly, “unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice”. Public confidence in this context refers to the trust reposed constitutionally in the courts to protect the integrity and fairness of their processes. The concept of abuse of process extends to a use of the courts’ processes in a way that is inconsistent with those fundamental requirements.52 131 There was nothing to suggest that the accused in Moti could not get a fair trial; but the role that Australian officials played in facilitating his unlawful deportation from another country was such that to allow the proceedings to run to verdict would bring the administration of justice into disrepute. 132 It is necessary when addressing these important observations about the imperative of maintaining public confidence in the administration of justice to remark on the particular role that prosecuting authorities play within our adversarial and accusatorial system. In Whitehorn v The Queen (1983) 152 CLR 657 at 663-664, Deane J said: Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one. The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial…. The observance of traditional considerations of fairness requires that prosecuting counsel refrain from deciding whether to call a material witness by reference to tactical considerations… 133 Part of the role of prosecuting counsel is to determine how the prosecution case will be presented. It is for the prosecutor to decide which witnesses to call and what evidence to present, save that those decisions must be made conformably with the obligation to fully and fairly present the prosecution case.53 Where a prosecutor determines not to call a witness or present a particular piece of evidence, a court has no power to direct the prosecutor to take a different course.54 That does not mean, however, that decisions made by prosecutors are immune from consequences. Where decisions made by prosecutors will result in an unfair or oppressive trial, or where the conduct of the prosecution is such as to bring the 52 Moti v The Queen (2011) 245 CLR 456, [57]. 53 Richardson v The Queen (1974) 131 CLR 116, 119 (Barwick CJ, McTiernan and Mason JJ). 54 M, RS v The Queen [2018] SASCFC 37, [46]. -- 42 of 84 -- [2025] SADC 40 41 administration of justice into disrepute, a court may stay proceedings, not as a mechanism to punish the prosecution for departure from its responsibilities, but to preserve the integrity of the court’s processes. 134 The extreme step of granting a permanent stay demands recognition that the question of whether the administration of justice would be brought into disrepute or whether a trial will be so unfair or unjustifiably oppressive as to constitute an abuse of process admits of only one correct answer.55 The evaluative inquiry in each case is unique and highly fact-sensitive56 and must be undertaken mindful of the ‘drastic’ nature of a remedy that is to be used only in rare or exceptional cases. The bar to establish entitlement to the remedy is, accordingly, a high one:57 ‘an applicant for a stay must establish that to continue a prosecution would – not could – involve unacceptable injustice or unfairness and be so unfairly and unjustifiably oppressive as to constitute an abuse of process.’58 135 These propositions are collected in the following passage of the reasons of Kiefel CJ, Gageler and Jagot JJ in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 at [3] and [21]: …the grant of a permanent stay to prevent an abuse of process involves an ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system. That ultimate decision must be one of last resort on the basis that no other option is available. This is why only an exceptional case justifies the exercise of the power of a court to permanently stay proceedings. If a court refuses to exercise its jurisdiction to hear and decide cases in other than exceptional circumstances and as a last resort to protect the administration of justice through the operation of the adversarial system, that refusal itself will both work injustice and bring the administration of justice into disrepute. … Neither necessary unfairness nor such unfairness or oppression as to constitute an abuse of process justifying a permanent stay of proceedings depends on a mere risk that a trial might be unfair. The party seeking the permanent stay bears the onus of proving that the trial will be unfair or will involve such unfairness or oppression as to constitute an abuse of process. While the onus is the civil standard of the balance of probabilities, the onus has rightly been described as a heavy one, and the power rightly said to be exercisable only in an exceptional case. This is because it is always an extreme step to deny a person the opportunity of recourse to a court to have their case heard and decided. Lest the concept of “exceptional circumstances” be reduced to the formulaic, the power to grant a permanent stay, as Gaudron J explained in Jago v District Court (NSW) , is “a power to refuse to exercise jurisdiction” which operates “in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised”, it being “a basic element of the rule of law, namely, that every person and 55 GLJ v Trustees of the Roman Catholic Church (2023) 97 ALJR 857, [17]. 56 Willmot v Queensland (2024) 98 ALJR 1407, [17] (Gageler CJ, Gordon, Jagot and Beech Jones JJ). 57 Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325, [166]. 58 R v Edwards (2009) 83 ALJR 717, [23]-[24]; Director of Public Prosecutions (Vic) v Tuteru [2023] VSCA 188, [66]. -- 43 of 84 -- [2025] SADC 40 42 organisation, regardless of rank, condition or official standing, is ‘amenable to the jurisdiction’ of the courts”. This context underlies the requirement of exceptionality to enliven the power to grant a permanent stay. 136 As a stay is a remedy of last resort, whether dealing with a contention of necessary unfairness (an unfair trial) or such unfairness or oppression as to constitute an abuse of process, a court must consider the availability of alternative interventions falling short of refusing to exercise jurisdiction to ameliorate the unfairness or oppression complained of. In Jago v The District Court of New South Wales (1989) 168 CLR 23 at 47, Brennan J said: When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer. 137 Thus the identification of a mere risk of unfairness is not sufficient to justify a stay of proceedings. The unfairness, prejudice or oppression complained of must be such that there is nothing a court could do to relieve against those consequences if the proceedings were permitted to continue. It must also be remembered that the requirement that a trial be conducted fairly does not demand a perfect trial.59 138 However, where the applicant for a stay demonstrates that a trial would be necessarily unfair or would result in such unfairness or oppression as to constitute an abuse of process or would otherwise bring the administration of justice into disrepute, a court has no ‘discretion’ not to stay the proceedings. Whether to grant a stay is not finally decided by a ‘balancing exercise’ weighing competing considerations. Retuning to GLJ v Trustees of the Roman Catholic Church (2023) 97 ALJR 857, the plurality said at [22]-[23]: …although it has been said that the question whether a permanent stay should be granted on abuse of process grounds ‘falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations’, the ultimate question is not ‘whether the unfairness to a moving party by reason of a stay outweighs the unfairness to a defending party by reason of the continuation of the proceedings’. It is difficult to conceive of a case in which a mere balancing of competing interests between the parties could justify a permanent stay of proceedings. The metaphor of a ‘balancing exercise’ is best avoided. It cannot be applied to the concept of either the incapacity for a fair trial to be held, or a trial involving such unfairness or oppression as to constitute an abuse of process. It also tends to distract attention from the real issue – the congruence or otherwise of the holding of a trial and rendering of a verdict with the fundamental norms underlying our legal system – and impermissibly refocuses attention on considerations personal to the parties… If a trial will be necessarily unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process, a court must not permit the trial to be held. If a fair trial can be held 59 Jago v District Court (NSW) (1989) 168 CLR 23, 49 (Brennan J). -- 44 of 84 -- [2025] SADC 40 43 and will not be so unfairly and unjustifiably oppressive as to constitute an abuse of process, a court ordinarily has a duty to hear and decide the case. 139 The authorities to which reference has been made have been concerned with the ordering of a permanent stay of proceedings. What is here sought by the applicant is a conditional or temporary stay of the proceedings until the prosecution honour the agreements made at the sixth and seventh trials. As the applicant points out, in the event a stay were ordered unless and until the prosecution adhered to the agreements previously made, the prosecution would have available to it the means to discharge the conditions of the stay. Nonetheless, even the making of a conditional order of the kind contemplated involves a refusal to exercise jurisdiction and must therefore be informed by the considerations set out above.60 The submissions of the parties 140 I turn then to the respective positions of the parties. 141 Mr Henchliffe KC submitted that the conduct of the prosecution in advance of the eighth trial and its decision to resile from the agreements that had been reached in relation to D12, D13 and P18 at the sixth and seventh trials constitutes an abuse of the Court’s processes and if not restrained, would render the applicant’s trial irretrievably unfair, oppressive and compromise the integrity of the processes of the Court. That followed, it was submitted, because no proper basis upon which the prosecution might justify a change in its position has been identified which leaves as the most likely explanation for the shift that the prosecution perceive greater prospects of securing a conviction by withdrawing from the agreements. 142 Mr Henchliffe argued, by reference to Nguyen v The Queen (2020) 269 CLR 299, that the withdrawal from the agreements can therefore be described as an improper tactical decision incompatible with the responsibilities of prosecuting authorities. Whilst a finding to that effect would, Mr Henchliffe submitted, provide a sufficient basis on which to stay the proceedings, he contended further that even absent such a finding, a stay was nonetheless appropriate as it would bring the administration of justice into disrepute to permit the prosecution to now resile from considered and carefully reasoned agreements previously made, consistently with the discharge of the prosecution’s duties, without any justifiable basis to do so. In this respect, Mr Henchliffe emphasised the prosecution’s decision not to put on evidence in opposition to the application and explaining its reasons for departing from the position previously adopted, which, it was said, gave rise to unfairness independently of the underlying conduct because it impeded the applicant’s capacity to advance this aspect of his application and, in turn, the Court’s capacity to determine the propriety or cogency of the reasons for the withdrawal. 143 Mr Henchliffe submitted further that the prosecution’s proposal to call DB in lieu of agreeing to the tender of D12 and the agreed facts, did not ameliorate the 60 Applicant’s Written Submissions, [42]-[46]; Prosecution’s Written Submissions, [17]-[21]. -- 45 of 84 -- [2025] SADC 40 44 unfairness and oppression to the applicant, which he contended was real and not theoretical. 144 This contention comprised essentially two limbs: first, it could not be safely assumed that DB would give evidence consistently with her affidavits and hence the agreed facts. Mr Henchliffe emphasised that the conversations occurred many years ago and that whilst there was some subject matter consistency as between DB’s affidavits, her most recent affidavit raised escalating health issues and suggests a deterioration in the clarity of her memory about the conversations. Mr Henchliffe argued that in circumstances where the prosecution had previously acknowledged through the making of the agreements that DB’s recollection of the conversations was truthful and accurate, the prospect that, if called, DB is unlikely to give evidence rising to the height of the agreed facts is productive of a serious forensic disadvantage to the applicant and such unfairness or oppression as to amount to an abuse of process. 145 Put another way, if, as seems to be the case, the clarity of DB’s recollection has deteriorated since the agreements were made, whether because of the delay since the seventh trial and successful appeal or for any other reason, the applicant will be deprived of the opportunity to establish that the complainant told the ‘lies’ which were clearly articulated in D12, D13 and P18, and which the prosecution accepted at the sixth and seventh trials had in fact been told by the complainant. Mr Henchliffe submitted that as there seems to be little doubt that ‘[DB] will not give evidence in exactly the terms, as clear or as strong, as the agreed facts’,61 the prejudice and unfairness to the applicant resulting from the prosecution’s change in position could not be described as hypothetical. Essentially, the decision to agree D13 and P18 at the sixth and seventh trials, meant that DB was not called to give evidence on this topic at times more proximate to the conversations. The applicant is now confronted with the likelihood that, if called to give evidence at the eighth trial, DB will not remember the conversations as recorded in her affidavit of September 2021 (VDD4). Mr Henchliffe submitted that it was therefore not correct to say that the evidence previously reduced to agreed facts would be led at trial because it is apparent that DB’s position as to the conversations has changed since VDD4 was sworn. For this reason, Mr Henchliffe submitted that this was not a case where a remedy less than a conditional stay could neutralise the features of the litigation said to give rise to an abuse. 146 The second limb of oppression and unfairness identified by Mr Henchliffe was said to emanate from what he characterised as the inevitable submission to be made by the prosecution in the event DB was called to give evidence, namely, that her evidence is unreliable. Whilst acknowledging that the prosecutor could not knowingly call DB for the purpose of having her declared hostile and unless she considered DB to be a witness of truth, Mr Henchliffe submitted that the irresistible inference to be drawn was that the prosecution intended to challenge DB’s reliability, in obvious contrast to the position taken at the preceding trials where 61 T101, 105. -- 46 of 84 -- [2025] SADC 40 45 the prosecution had conducted its case on the basis that the complainant had in fact made the disclosures to DB about sexual activity with LN. That is to say, even if DB gave evidence in accordance with the agreed facts, the applicant would be forensically disadvantaged by the challenge to be made by the prosecution to at least the reliability, and potentially the credibility, of DB’s evidence. 147 Mr Henchliffe also argued that the prospect of a submission to that effect being made in addition to the withdrawal from the agreements, was not just unfair but fundamentally inconsistent with the position taken at the sixth and seventh trials and hence, apt to bring the administration of justice into disrepute.62 He emphasised that by entering into the agreements at the sixth and seventh trials, the prosecution invited the trier of fact to proceed on the non-contentious basis that AW had lied to her mother about sex with LN. The prosecution accepted the truthfulness and accuracy of DB’s recount of the conversations in her affidavits and was now positioning itself to challenge whether those conversations took place or, at the very least, involved AW saying what it had previously been agreed that she said. 148 Mr Henchliffe submitted that, in light of the procedural history of the matter, the prosecution’s decision to withdraw from the agreements is redolent of the view that the prosecution can conduct the eighth trial ‘…without any regard to what had come before.’63 He argued that, absent a material change in circumstances that would justify a departure from the approach taken at the earlier trials, it was an abuse of process for a model litigant to resile from what I should find to be careful and considered agreements made on instructions.64 149 Although unable to point to any authority sharing close factual parallels with this matter, Mr Henchliffe relied on remarks made by Gleeson CJ, Callinan and Kirby JJ, all of whom were in dissent, in R v Taufahema (2007) 228 CLR 232. In that case of murder, a police officer was killed after pursuing a stolen vehicle driven by Taufahema and in which there were three other passengers. All of the men were on parole and each was in possession of a firearm. After a brief pursuit, the car driven by Taufahema crashed and the men alighted the car. One of the passengers, a man named Penisini, fatally shot the pursuing police officer. The prosecution initially alleged at trial that Taufahema was party to a joint enterprise with the other occupants of the vehicle to use a firearm to prevent lawful arrest and detention by police. By the end of the trial however, the prosecution had reformulated its case to allege a joint enterprise to ‘escape…from lawful apprehension by the police’, contemplating the use of a firearm to effect the escape and a resultant risk of death or serious injury.65 150 Taufahema was found guilty of murder. On his appeal against conviction, the Court of Appeal held that the foundational crime as ultimately articulated by the 62 T21. 63 T94. 64 T94-95. 65 R v Taufahema (2007) 228 CLR 232, [17]. -- 47 of 84 -- [2025] SADC 40 46 prosecution after discussion with the trial judge was, in fact, not an offence known to law such that the premise upon which the case of joint enterprise was left to the jury was fundamentally flawed. The Court of Appeal held further that as the alternative case put by the prosecution on the hearing of the appeal, namely, that there was an agreement to hinder the police officer in the execution of his duty, had not been put at trial and was factually unsustainable in any event, an order for a re-trial was inappropriate. The Court substituted a verdict of acquittal. 151 The Crown sought special leave to appeal on the basis that an order for a re- trial should have been made to allow the prosecution to put a case that the killing of the police officer was ‘an armed robbery gone awry’. That conceptualisation of the prosecution case had not been raised at trial nor in the Court of Appeal. 152 Gleeson CJ and Callinan J upheld the order of acquittal for essentially two reasons. First, at [32], they held that as no such argument had been advanced on the hearing of the appeal in the court below, there was no error in the Court of Appeal’s approach. 153 Secondly, their Honours concluded that even if the argument had been raised in the Court of Appeal, no order for a re-trial should have been made as the approach taken by the prosecution at trial was a ‘considered decision, with plain tactical implications’. They continued at [37]: It may be asked why “the Crown should not be given an opportunity to make a new case which was not made at the first trial”? If the prosecuting authorities at trial fail to satisfy the jury of their case, as particularised, then that is the end of the matter. As a general rule, the jury’s acquittal prevents a further attempt to prove the same offence. The prosecution cannot bring the same charge again, relying on new evidence, or new arguments. If, however, there is a conviction at trial, but the conviction is quashed on appeal, and there is an evidentiary basis for a possible “new case”, can the Court of Criminal Appeal order that the prosecution may attempt, at a new trial, to make out a new case? The considerations identified in Crampton v The Queen as reasons for the rule confining the circumstances in which a new point may be taken in this Court on a criminal appeal by an accused person are relevant in this context also. In particular, the adversarial procedure of criminal justice, which is bound up with notions of judicial independence and impartiality, and according to which the issues at trial are chosen and defined by the parties and their counsel, is at the heart of the matter. It is the executive branch of government that decides whether to prosecute, and what charges to lay. A trial is fought as a contest between the executive government and a citizen. The judge presides neutrally over that contest. Counsel for the respective parties define the issues, decide what witnesses will be called and what questions will be asked, and decide what arguments will be pursued and what will be abandoned. The general rule that litigants are bound by the conduct of their counsel, a rule essential to the adversarial system, applies with at least as much force to the prosecution as to the defence. 154 Kirby J, in separate reasons, arrived at the same conclusion as Gleeson CJ and Callinan J. His Honour observed at [158] that when considering the Crown’s submission that a re-trial ought to be ordered, it was necessary to bear in mind the ‘…strength and persistence of this Court’s repeated statements that the prosecution should not be given an opportunity to make a new case which it had not made at -- 48 of 84 -- [2025] SADC 40 47 the first trial.’ With reference to McHugh J’s statement of principle in Jiminez v The Queen (1992) 173 CLR 572 at 590-591 that, as a general rule, ‘…a new trial will not be ordered so that the Crown can put a different case at a second trial…’, Kirby J remarked at [161]: It should be noted that the application of these remarks has not been confined to cases where, at any second trial, the prosecution might wish to adduce fresh evidence not presented at the first trial. Whilst that possibility would certainly reinforce the reluctance to order a retrial, it is by no means essential. What is decisive is the impermissible course of allowing the prosecution, having once failed, to enjoy a further opportunity to succeed on a different case, even within the same evidence. Essentially, this is what the applicant is now seeking to do in a retrial of the respondent. 155 Despite the strong and persuasive dissents by Gleeson CJ, Callinan and Kirby JJ, the Crown’s appeal was allowed. In part, that was because Gummow, Hayne, Heydon and Crennan JJ considered that responsibility for the errors at the first trial were to be laid at the feet of the trial judge. They observed at [51]: …whether or not one chooses to call the errors identified by the Court of Criminal Appeal “blunders”, they were certainly “technical”, and they were errors by the trial judge rather than by the prosecution. For it was the trial judge rather than the prosecution who bore primary responsibility for the circumstances which led the Court of Criminal Appeal to allow the appeal. Apart from the errors in summing up criticised by the Court of Criminal Appeal, it was by reason of the trial judge’s influence, in a long debate with counsel for the prosecution after the evidence had closed but before final addresses, that the prosecution ended up not pressing its original case as opened to the jury, instead relying only on a case turning on a “foundational crime” of evading lawful apprehension which does not exist. The fact is that the trial which took place was a flawed one. The question is whether an order for a new trial is a more adequate remedy for the flaws in that trial than an order for an acquittal – that is, an order terminating the possibility of any investigation by a jury, in an unflawed fashion, of the accused’s role in the circumstances leading to Senior Constable McEnallay’s death. An order for acquittal conflicts with “the desirability, if possible, of having the guilt or innocence of the [accused] finally determined by a jury which, according to the constitutional arrangements applicable in [New South Wales], is the appropriate body to make such a decision” 156 The joint reasons explored, and rejected, the submissions of the respondent that as the prosecution had carefully formulated its case at the first trial, it should not be given an opportunity to run a new case on a re-trial (at [58]): A related submission turned on the proposition that it is common for appellate courts to conclude that no miscarriage of justice arises where an error of the trial judge is not complained of by counsel appearing for the accused in a criminal trial, or counsel otherwise conducts the trial in a particular way. However, it does not follow that counsel for the prosecution is debarred from requesting a new trial to be conducted on a different basis from an earlier trial in which a conviction was obtained and then set aside on appeal, merely because the basis on which the earlier trial was conducted appears to have been a carefully considered one. That may be a relevant factor, but it is to be taken into account with all other relevant factors, one of which is how different the new basis is from the old, and in what ways. -- 49 of 84 -- [2025] SADC 40 48 157 The plurality ultimately rejected the contention that an order for a re-trial would permit the prosecution to run a ‘new case’ (at [68]): In the present case, what the prosecution proposes to do at the second trial of the accused is not to advance any factual allegation inconsistent with what the jury or the Court of Criminal Appeal have already found, and not to advance any factual allegation inconsistent with the case advanced at the first trial. It proposes to tender the circumstantial evidence tendered at the first trial – of the telephone calls made by the four men on the day in question, of the surveillance of two of the men as they travelled by railway, of their movements around Sydney, and of the incriminating materials they possessed (four loaded guns, all stolen; extra ammunition; a hockey mask; two pairs of gloves; sunglasses). That evidence illuminates the nature of the enterprise on which the men were engaged. The enterprise can be characterised in different ways. That is, what the prosecution proposes to do is rely on the same evidence as was called at the first trial, but to seek to characterise the facts which that evidence may establish in a different way, but not a radically different way. … It has not been shown that the evidence to be called by the prosecution at the second trial will be different in any other respect. Counsel for the accused conceded that if the characterisation which the prosecution wishes to make of the evidence at the second trial had been put at the first, there would have been no difference in the evidence called, except for Cackau. In fact it has not been shown that the accused would not have called Cackau had the “new case” been presented at the first trial, since the point of doing so was to seek to establish that the accused was not part of the criminal enterprise. That goal was as important as it will be in the second trial, and the only way of achieving it was to call Cackau. As for tactical considerations, no doubt it was easier for the prosecution to seek to establish the case left to the jury than the case opened at the first trial at a factual level, and possibly the “new case”, had it occurred to counsel for the prosecution, was originally not run because of its perceived difficulty. In the circumstances as they have unfolded, however, it is hard to see why it is unfair for the prosecution to be allowed to remould its case in the manner proposed. What has happened may be regrettable and undesirable, but it is not sinister. 158 The statements of the dissenting judges in Taufahema, which were of course made in the context of the unique constitutional role and position occupied by the High Court within the judicial hierarchy, require some adaptation to meet the circumstances of this case which involves a successful prosecution and convictions being set aside because of shortcomings, not in the prosecution case, but in a trial judge’s reasons. 159 Nonetheless, the judgments of Gleeson CJ, Callinan and Kirby JJ, lend some support to the idea that the Crown should not lightly be permitted to run a criminal trial in a manner contrary to a considered approach adopted at an earlier trial. Unlike in Taufahema, the decisions previously made to agree to the tender of D12 and agree the facts in D13 and P18 were decisions made independently of any influence exerted by a trial judge. Moreover, the decisions were neither legally nor factually defective for reasons I will come to. However, as the approach of the plurality makes clear, any general reluctance to permit the Crown to run a ‘new case’ at a retrial is far from absolute and, plainly enough, the circumstances under consideration in Taufahema were very different to those arising here. It is also significant that in Taufahema and having run a defective case at trial and on appeal, the prosecution were nonetheless provided with an opportunity to formulate and litigate a different case at a second trial, notwithstanding the jeopardy that placed -- 50 of 84 -- [2025] SADC 40 49 the accused in, having been the beneficiary of an order of acquittal in the Court of Appeal. 160 Be that as it may, it is important not to overlook, as Mr Henchliffe points out, that the prosecution wish here to press two factual matters inconsistently with the conduct of its case at the sixth and seventh trials, namely, whether AW in fact made the disclosures the prosecution previously agreed she in fact made and whether DB is reliable in her recollection (if any) of the disclosures. The centrality of AW’s credibility and reliability to the Crown case highlights the significance of these inconsistent factual allegations now being advanced at the eighth trial. 161 In opposing the application for a stay, Ms Dunlop SC advanced three propositions: first, she submitted that the change of position reflected her review of the brief as the newly allocated prosecutor and how she considered the trial ought to be conducted and that there could be no relevant unfairness or prejudice to the applicant in a decision to call evidence from DB in lieu of agreeing facts as none of the applicant’s procedural or substantive rights were affected by the change in position; secondly, she submitted that the agreements made at the sixth and seventh trials by the prosecutors then appearing should not have been made; thirdly, she submitted that the most recent affidavit of DB – provided during the hearing of this application – meant that it would no longer be proper for the prosecution to agree facts in the form of P18, at least without further refinement. 162 By way of what was essentially a preliminary proposition, Ms Dunlop put that the application required the Court to consider the consequences of the prosecution’s decision to withdraw from the agreements, not the reasons for it. She argued that decisions as to the presentation of the prosecution case are within the exclusive province of the prosecutor, and that there could be no unfairness to the applicant in the circumstances of this case because: As is ordinarily the case, the witness will give oral evidence. As is ordinarily the case, the witness’ evidence can be tested by the accused through cross examination. As is ordinarily the case, any prior inconsistent statements can be put to the witness for their consideration and comment. As is ordinarily the case, the prosecution and the defence can make submission[s] to the trial judge about the use of that evidence. As with any trial, and any witness, there is always the possibility that a witness may not come up to proof. As with any trial, there is always the possibility that a witness may say something different or new in their evidence. The rules of evidence exist to ensure that such situations can be properly dealt with by counsel for the accused. That uncertainty is not productive of unfairness to the accused in circumstances where the evidence can be tested.66 163 Against the background of this proposition, and to the extent that the explanation for the change in position was relevant, Ms Dunlop summarised her position: However, having taken conduct of the brief last week, I look at the matter, as a prosecutor, afresh and consider how it is that I think I should best present the evidence, on the 66 Prosecution’s Written Submissions, [10]. -- 51 of 84 -- [2025] SADC 40 50 prosecution case, in line with my obligations to prosecute firmly, but fairly and it was my view, at that time, that the appropriate way to proceed in this matter was to call the relevant evidence from [DB], rather than to agree evidence as had been done in two previous trials, to a greater or lesser extent. 164 The same point was made in the prosecution’s supplementary written submissions:67 That a new prosecutor has taken the conduct of the matter inevitably means that they would consider the evidence afresh, consider which witnesses are required, and consider how best to present the evidence at trial. These forensic decisions are made by every prosecutor with respect to every trial, when an initial trial or a retrial. 165 I interpolate here that these submissions may be thought to beg the question, what factors were taken into account in deciding that the ‘appropriate way to proceed’ was to call evidence from DB in lieu of agreeing the facts that had been agreed on two previous occasions? 166 In accordance with the taxonomy of s 158(3) of the Criminal Procedure Act 1921 (SA), Ms Dunlop described the eighth trial as a ‘new trial’ and submitted that conducting a new trial differently to previous trials but in accordance with the rules of evidence and orthodox procedures of the Court, could not be said to give rise to any oppression or unfairness to the applicant or otherwise constitute an abuse of the Court’s processes. To the contrary, Ms Dunlop submitted that it was in the interests of justice that the evidence be adduced in the conventional way and that the trier of fact be left to determine whether to accept or reject DB’s evidence with the benefit of submissions of the parties. 167 Ms Dunlop argued that the change in position merely manifested a different forensic decision made in conformity with the prosecution’s duty to conduct the trial fairly but robustly. She contested the submission that the change reflected an improper tactical decision-making exercise and highlighted the difference between the effect of the revised position in this case with what occurred, and why, in Nguyen v The Queen (2020) 269 CLR 299. It will be remembered that in Nguyen, the prosecutor’s decision not to tender the accused’s interview because he considered that doing so would not assist the prosecution case was strongly admonished by the plurality, who said at [45] (in a passage I have already set out but repeat for convenience): A prosecutor acting in accordance with the responsibilities of their office is not to be expected to be detached or disinterested in the trial process. A prosecutor is to be expected to act to high professional standards and therefore to be concerned about the presentation of evidence to the jury. It is to be expected that some forensic decisions may need to be made. It is not to be expected that they will be tactical decisions which advance the Crown case and disadvantage the accused. In Ziems, Fullagar J observed that in that case the object of not calling a vital witness could only have been to deny the other party the ability to cross-examine him. Whilst the creation of a tactical advantage might be permissible in civil cases, in criminal cases it may not accord with traditional notions of a prosecutor's function, 67 Prosecution’s Written Submissions, [4]. -- 52 of 84 -- [2025] SADC 40 51 his Honour said. In Whitehorn, Deane J said that the observance of traditional considerations of fairness requires that prosecuting counsel refrain from deciding whether to call a material witness by reference to tactical considerations. It will be obvious that a decision by a prosecutor to refuse to tender a mixed statement so that the accused is forced to give evidence falls into this category. 168 Returning to the dichotomy between the reasons for the change in position and the consequences of it, Ms Dunlop contrasted a refusal to call a witness or tender evidence because of some perceived tactical advantage with what was contemplated here which was the adducing of evidence from DB in the conventional way. 169 Ms Dunlop submitted further that, subject to the matters discussed with reference to her third contention, as it was anticipated that DB would give evidence to the same general effect as the agreed facts, the prejudice and unfairness pointed to by the accused was purely theoretical. Put another way, Ms Dunlop contended that if DB were to give evidence consistently with the agreed facts, the applicant would not be exposed to any unfairness or forensic disadvantage as the body of evidence before the trier of fact and upon which an assessment of the complainant’s credibility could be made would be to the same effect as it was at the sixth and seventh trials. 170 Ms Dunlop accepted however that the change in position and the prospect of a challenge to DB’s evidence means the applicant will lose the benefit of the prosecution’s acceptance at the sixth and seventh trials that the complainant had in fact lied to her mother about LN (and possibly to the Court when denying having made those statements), but characterised that as a ‘positive’ – and by inference, unjustified – advantage the applicant had enjoyed at the earlier trials. Ms Dunlop argued that the fact no such concession would necessarily be made at the eighth trial could not render the applicant’s trial unfair or amount to an abuse of process. The position being taken by the prosecution did not preclude the applicant from demonstrating that the complainant had lied or the trier of fact accepting as much: rather, whether any finding of fact to this effect would be made was, on the revised position, a matter for the trier of fact to determine based on the evidence given by DB. 171 The second overarching submission advanced by Ms Dunlop was that the agreements at the sixth and seventh trials ‘should not have been made’ because it was inappropriate to agree facts in relation to the particular subject matter. The Director twice declined an invitation to put on evidence explaining the basis upon which it was said that the original agreements ‘should not have been made’ and instead urged me to act on the submissions of Ms Dunlop as an officer of the Court.68 I will return to this issue in due course. 172 The third submission made by Ms Dunlop was that she intended to call DB expecting that her evidence, with some qualification, ‘would be substantially the 68 T54, Prosecutions Written Submissions, [1]. -- 53 of 84 -- [2025] SADC 40 52 same evidence that was agreed but from the person who would ordinarily, in the usual course of events, come along and give that evidence orally’.69 This, in turn, was said to meet the suggestion that the change in position was an attempt to obtain an illegitimate tactical advantage at the expense of a fair trial.70 173 The qualification arises from the further affidavit taken from DB on 5 August 2024 – after Ms Dunlop had advised the applicant’s lawyers that she intended to call DB. In her further affidavit, which was ultimately tendered on the application by consent in a redacted form (VDP5), DB observes that she is of ‘bad health and have been unwell of late, but I am now recovered enough to come to Adelaide to give evidence in this matter’. She states that she has ‘reduced mobility due to a stroke’ and suffers from autism, ‘anxiety and depression’. She goes on to depose to the following: 10. I can say that during the access visits with [AW] and my other children whilst they were in the care of the [N’s] I found that [AW] would always want to get me on my own. She said something about [LN] touching her where he shouldn’t, where her bathers go. That was what I always taught the girls was a private area – where their bathers were. She said it hurt. 11. I remember her saying that [LN] hurts her she would have been around seven (7) or eight (8) years old at this time. [AW] would whisper to me and she would talk in what I would describe as a ‘baby’ voice. I told welfare about this many times. They told me that I was making trouble and that I would not be able to see the kids any more. 12. One (1) of these occasions I remember occurred at the Adelaide Zoo the other may have been in South Adelaide. We also had access visits in MURRAY BRIDGE at the Bunyip. It was a bit chaotic when all the kids were there trying to get attention. 13. There were two (2) [N] boys I remember [LN] but I don’t remember the name of the other boy, I can remember his face though. I also don’t remember which boy was the oldest. 14. [Redacted by the parties.] 15. When she left the POPE’S care she came to stay with me in QUEENSLAND. I don’t remember now how long she stayed but it was long enough for her to go to school. 16. I had my statement from September 2021 read to me about when [AW] was 16 years of age. I have been asked what, if anything, I remember about the circumstances of that occasion. 17. I remember a time when [AW] was staying with me she mentioned [LN], and then when I asked her if she wanted to talk more about it she said she didn’t want to talk about it. [AW] used to go down to a tree in the back yard, I called it the ‘Sulking Tree’. She was down there and I could tell by her demeanour that it was something significant but she had her head against my shoulder, she was quiet for a moment 69 T36. See also T59, 74. 70 T36. -- 54 of 84 -- [2025] SADC 40 53 and then said the word ‘Sex’. I don’t know what the ‘sex’ was she didn’t elaborate. She said that she did not want to talk about it any more. 18. I remember her mentioning [LN]. I remember her saying the word sex. I do not remember what else she said. I think that she just said that she did not want to talk. 19. I have had my statements about the Modbury Hospital time I saw [AW] read to me. … 20. I am now not 100% sure if she spoke about [LN] on that occasion. She may have, … I had not re-read that statement before I spoke to Michelle and provided my statement in September 2021. 174 Beyond a deterioration in memory, the affidavit does not detail any further explanation for the apparent change in DB’s recollection with respect to the conversations she had deposed to in VDD4 when AW was 11/12, 16 and at Modbury Hospital. It can be seen then that whilst there is some general subject matter overlap between the affidavits, there are clear, and significant, differences between VDD4, on which the agreed facts P18 were based, and the content of DB’s most recent affidavit (VDP5). 175 Drawing these matters together, Ms Dunlop’s position was that VDP5 ‘does change things’ with respect to at least paragraphs 1(b) and (c) of P18 such that some refinement of the agreed facts would be necessary if the prosecution were inclined to deal with this issue by way of agreement.71 The point being made, as I understand it, was that in light of VDP5 there is an independent forensic justification for not adhering to the agreements as they may no longer accurately reflect DB’s memory. However, Ms Dunlop candidly acknowledged that the decision to resile from the agreements was made before the further affidavit of DB was obtained, which would mean that a change in DB’s anticipated evidence could not have played any part in the decision to withdraw from the agreements. The applicant’s position was that I should not act on this concession as it was not the subject of evidence,72 but as will be seen, that finding can be made on the basis of the material before me. Curiously however, if the decision was made to call DB prior to the information in VDP5 being obtained, at the time the decision was made Ms Dunlop must have been operating on the assumption that DB would give evidence in accordance with VDD4 and hence the agreed facts. This tends to re- affirm an acceptance by the prosecution that DB is at least truthful insofar as VDD4 – and hence P18 – is concerned. 176 Ms Dunlop argued further that even if DB did not ‘come up to proof’, she could be cross-examined on her affidavits in the usual way and if she denied making any of the statements appearing in her affidavits, they too could be proved 71 T86-89. 72 Applicant’s Written Submissions, [36]. -- 55 of 84 -- [2025] SADC 40 54 in the usual way.73 The essential point being made was that the prejudice relied upon by the applicant was purely hypothetical at this stage. 177 Ms Dunlop acknowledged that if DB came up to proof on the conversations with her daughter, she could not ‘rule out’ making a submission that her evidence ought to be approached with caution because of, amongst other things, the nature of her relationship with the complainant or the passage of time since the conversations.74 Put another way, it is on the cards that the prosecution will, at the very least, challenge the reliability of DB’s evidence in the event she gives evidence about the conversations which was acknowledged to be inconsistent with the position taken by the prosecution at the sixth and seventh trials. The Director’s decision not to put on evidence 178 It is convenient here to deal with an issue that arose during the course of argument with respect to assertions of fact made by Ms Dunlop SC as to whether the original agreements ‘should not have’ been made and why she determined to call DB in place of adhering to the original agreements. Ms Dunlop submitted that no evidence was required for me to act on these submissions given she is an officer of the Court and the submissions were made on the instructions of the Director. No authority or practice of the Court was relied on in support of this submission, which may also be thought to be at least contrary to the spirit of Rule 39 of the Joint Criminal Rules 2022 insofar as that rule contemplates the need for evidence of contentious facts on interlocutory applications. 179 I reject Ms Dunlop’s submission. 180 On an application of this kind, matters of fact upon which reliance is placed by a party should be put before the Court in the conventional way, at least where the facts are contentious or disputed, as in this case.75 The filing of affidavits assists in clearly demarcating areas of factual contest or agreement; ordinarily promotes greater care and accuracy with respect to assertions of fact and, through the prospect of cross examination, ensures that parties are held to a greater degree of accountability in respect of factual contentions. 181 Whilst I do not doubt the integrity of Ms Dunlop’s submissions, that is not to say that the key propositions of fact sitting behind them need not have been put before the Court by way of an affidavit, the deponent of which could be cross examined by the applicant’s counsel in the event that were necessary and appropriate. By declining to put on evidence to explain the reasons behind the change in position, the prosecution essentially disarmed the applicant from exploring and potentially challenging the assertions of fact upon which I was invited to decide the application. As Mr Henchliffe pointed out during his submissions, many issues would need to be explored before any sound conclusion 73 T59. 74 T60. 75 See, eg, Ibrahim v Police [2013] SASCFC 70, [14]. -- 56 of 84 -- [2025] SADC 40 55 could be reached that the agreements ‘should not have been made’ or that it was ‘appropriate’ for the prosecution to withdraw from the agreements in the circumstances of this case and adduce oral evidence from DB. As it is, the factors taken into account, or not taken into account as the case may be, when the prosecution determined to resile from the agreements have not been revealed. Mr Henchliffe was correct to say that he is unable to cross examine on the word of counsel from the Bar table. Declining to put on evidence explaining the reasons for the change in position has also interfered with the Court’s capacity to adjudicate on the application, given that the reasons for the change are plainly material – a matter which I will address shortly. 182 Moreover, as Ms Dunlop accepted, I should proceed on the basis that the prosecutors at the sixth and seventh trials acted on instructions. That concession was appropriate. There is nothing to suggest they acted unilaterally or thoughtlessly and Ms Harper expressly told the trial judge at the seventh trial that her submissions with respect to the disclosures to DB were made on instructions. Once it is accepted that I should proceed on the basis that the agreements were made on instructions, the importance of evidence explaining why the agreements were being resiled from is thrown into even sharper focus. That must follow because, absent evidence, it cannot be suggested that the agreements were other than agreements properly made in what was considered to be the discharge of the prosecution’s responsibility to present the case fully and fairly. 183 Accordingly, I am not prepared to act on the submission that the change in position has come about because, having reviewed the brief, Ms Dunlop determined that the facts should not be agreed and that DB should be called. I would add that, in any event, it is difficult to understand why the facts should not have been agreed. It is commonplace in trials of this kind for agreements to be reached about prior inconsistent statements made by a witness. It is often a pragmatic and efficient way to deal with such an issue where the person to whom the inconsistent statement was made is considered a credible and reliable witness, as must have been the case here. 184 In the absence of evidence, I am not prepared to act on the assertions of fact advanced by Ms Dunlop from the Bar table, save as to matters upon which there is agreement between the parties. 185 The effect of my unwillingness to act on these submissions in the absence of evidence is that the prosecution has not put forward any justification for resiling from the agreements. 186 I also reject the submission that the reasons for the withdrawal from the agreement are immaterial and that it is only the consequences of the change in position that are to be evaluated on this application. In the context of an application for a stay on the ground of an abuse of process arising from a change in position by the prosecution and a suggested breach of the prosecutorial responsibility to conduct a case fully and fairly, the reasons of the High Court in Nguyen make plain -- 57 of 84 -- [2025] SADC 40 56 that the explanation for impugned prosecutorial conduct is highly relevant. Although the applicant may nonetheless succeed in establishing the grounds for a conditional stay irrespective of what findings are made about the reasons for the change in position, I do not accept that the explanation for the change is therefore irrelevant. In Williams v The State of Western Australia [2021] WASCA 33, on a plea to a drug offence, an agreed factual basis for sentencing was put to the sentencing judge. The sentencing judge considered the factual basis to be disingenuous and made his views clearly known to the parties. The judge’s remarks prompted the prosecution to renege on the agreement and propose an alternative basis for sentencing. Although the prisoner’s appeal against sentence was allowed on the basis of the judge’s refusal to recuse himself, the Court of Appeal of Western Australia made what I consider to be apposite comments in relation to the change in position and the absence of an explanation for it (at [139]- [140]): …the prosecutor accepted that there was no additional evidentiary matter which led to the State’s change of position. The prosecutor observed that the State initially made a pragmatic decision, to which there was ‘substantial resistance’ by the [sentencing judge]. After internal conferring between those responsible for managing the file, it was decided that in a context in which the sentencing judge was, in effect, calling for a trial of issues, it would be preferable to the State to advocate a different position. The prosecutor then added that, ‘Indeed, a different position was taken by the State as to what could be proved against [the appellant]’. The propriety of the decision by the State to renege on its agreement as to the facts, and to advance a different factual basis for the appellant’s sentencing, is, in our view, significantly influenced by the basis upon which that decision was made. The material before this court sheds very limited light on that question. Nothing in the materials before this court provides any direct support for the assertion of counsel for the State on appeal that its change of position was a result of further reflection by those responsible for the prosecution and the making of a considered decision that the position earlier adopted was wrong in fact or law. An improper tactical decision? 187 Mr Henchliffe submitted that in the absence of evidence from the prosecution, I should find that the withdrawal from the agreements reflects an improper tactical decision made by the prosecution to improve the prospects of conviction. 188 There is no concession by the prosecution or positive evidence to this effect but Mr Henchliffe invited me to infer as much having regard to the circumstances in which the shift has occurred and the prosecution’s unwillingness to put on evidence to explain the change. 189 The applicant carries the onus to establish that the change in position is an improper tactical decision made to improve the prospects of conviction and disadvantage the conduct of the defence case. 190 There is no doubt that the change in position is, objectively, to the prosecution’s advantage. The combined effect of withdrawing from the -- 58 of 84 -- [2025] SADC 40 57 agreements and calling DB in circumstances where it would appear that the substance of her evidence on the disclosures will not emulate the agreed facts in material respects is to enhance the prospects of conviction. That is for the obvious reason that at the previous trials, the prosecution agreed that the complainant had told her mother what, in light of her sworn evidence, had to be lies about sex with another foster brother. Whilst by no means determinative of the issues joined between the parties, the fact that the prosecution agreed that its critical witness had made false allegations of this kind against another foster brother raised an exacting question about the credibility and reliability of the complainant’s account of the charged acts. 191 However, the consequence of the change in position is a matter separate to the reasons for the change, albeit the consequences may provide some insight into whether the change in position is improperly motivated. 192 Not all prosecutorial decisions that have the consequence of improving the prospects of conviction will necessarily be improper tactical decisions. Prosecutors are entitled, indeed expected, to make forensic decisions about the conduct of a prosecution case. In the ordinary course, those forensic decisions will be shaped by a number of variables: the prosecutor’s experience and technical proficiencies; the prosecutor’s case theory; the availability of witnesses and evidence; as well as a myriad of other practical considerations. The point to be had for present purposes is that some care must be taken to avoid reasoning that because a decision has the consequence of improving the prospects of conviction it must be a decision motivated by a desire to obtain an improper tactical advantage in non-conformity with the responsibility to present the prosecution case fully and fairly. 193 Of course, in this case, I do not know why the prosecution has abandoned the previously agreed position because the prosecution has declined to put on evidence. The applicant argued that in those circumstances and because the explanation for the change is peculiarly within the knowledge of the prosecution, I should infer that the explanation would not assist the prosecution. Drawing such an inference would not however establish any particular proposition of fact about the reason for the withdrawal. 194 I have given anxious consideration to the applicant’s submission that I should find that the decision to abandon the agreements is an improper tactical decision. I have taken into account the absence of evidence from the prosecution about the reasons for the decision; the proposal to call DB in lieu of agreeing the facts; the intimation that DB’s evidence may well be challenged; the refusal to tender the applicant’s evidence from the sixth trial and the evidence more generally put before me on the application. As to the refusal to tender the applicant’s evidence, as I have found that the evidence is not admissible at the instance of the prosecution because it is in fact entirely self-serving, I cannot accept that this in any way informs the propriety of the change in position. -- 59 of 84 -- [2025] SADC 40 58 195 I also take into account that, on the evidence, the decision not to agree the facts and to call DB instead was communicated to the applicant’s lawyers on 2 or 4 August 2024.76 The supplementary affidavit from DB, VDP5, was provided to the investigator over the phone on 5 August 2024. It would seem to follow that the decision to withdraw from the agreement was made prior to further disclosure from DB. That would mean that when the decision was made to call DB, it must have been anticipated that her evidence would be to the effect of VDD3 and VDD4 and hence D13 and P18. Accordingly, when the decision was made, the prosecution is unlikely to have perceived any advantage to itself in calling evidence from DB, other than that course giving rise to the opportunity to make submissions about the reliability of her evidence. Additionally, Ms Dunlop could not have made a decision to call DB unless she considered her to be a witness of truth which assessment carries with it limitations on the extent to which the evidence of DB could be challenged or undermined by the prosecution. 196 In this respect, I do not overlook the contention of the applicant that there is no evidence about when the prosecutor first spoke to DB.77 However, on the evidence before me, and taking VDP5 at face value, it appears the further disclosure from DB occurred after the decision had been made. There is no evidence that the prosecution was aware of the shift in DB’s memory prior to 2 or 4 August 2024. 197 Whilst calling DB to obtain an opportunity to make an adverse submission about the reliability of her evidence would obviously be an inconsistent approach to take given the history of the matter, I do not think it would necessarily reflect the making of an improper tactical decision for the reasons I have given and for the further reasons set out at [246]. 198 Notwithstanding the absence of an explanation from the prosecution, I am not persuaded on the evidence that I can make the finding sought by the applicant. I appreciate that the refusal by the prosecution to put on evidence has denied the applicant – and the Court - the opportunity to critically evaluate the prosecution’s decision-making process and, should it have been appropriate and necessary, to cross-examine about the change in position. In this respect, the applicant is forensically disadvantaged in advancing his position on this aspect of the application. However unfortunate that may be, I am not satisfied that I can conclude that the decision was necessarily informed by improper tactical considerations. The distinction between forensic decisions and improper tactical decisions may, in some cases, be a fine one but it is a distinction that must be observed. On the evidence before me, I am not satisfied that I can conclude that the decision must fall into the latter category. 76 The applicant agreed this as a fact: Applicant’s Written Submissions, [33]; VDD1, Affidavit of Patrick Deegan, [34]. 77 Applicant’s Written Submissions, [36]. -- 60 of 84 -- [2025] SADC 40 59 199 Self-evidently, whether the change in position otherwise gives rise to an abuse of process is a very different question. The outcome of this application does not depend on the finding urged by the applicant. 200 The findings that I am prepared to make, based on the evidence before me and the uncontentious facts, are as follows: 1. The agreements made at the sixth and seventh trials were made by the prosecutors then appearing in accordance with their instructions.78 The form and substance of the agreements were carefully considered and the agreements properly and appropriately made. 2. The prosecution proceeded at the sixth and seventh trials on the basis that AW in fact made the disclosures to her mother as recorded in the agreed facts.79 The trial judge at the seventh trial was expressly invited to proceed on the basis that it had been proved that the complainant made the disclosures attributed to her in the agreed facts, which finding the judge in fact went on to make. 3. Ms Dunlop advised the applicant’s lawyers on 31 July 2024 that she had been briefed to conduct the trial.80 4. Ms Dunlop advised the applicant’s lawyers on 2 August 2024 that she intended to call DB to give evidence,81 signalling an intention not to adhere to the agreements previously made. At the latest, the decision not to agree to the tender of D12, D13 and P18 was communicated by 4 August 2024.82 5. On 5 August 2024, DB provided a further affidavit (VDP5) in which she purported to be either unable to recall disclosures made by AW to which she had previously deposed to in VDD4 or which she recalled with less clarity than she had deposed to in VDD4. 6. In light of VDP5 and for reasons I set out in more detail at [207]-[218], it is unlikely that DB will give evidence consistent with D12, D13 and P18 in material respects. 7. An adverse submission about DB’s evidence is likely to be made by the prosecution in the event DB is called as a witness. 78 Prosecution’s Written Submissions, [16a]; Applicant’s Written Submissions, [26]. 79 Applicant’s Written Submissions, [28]. 80 Applicant’s Written Submissions, [30]. 81 Prosecution’s Written Submissions, [16(c)(i)]; Applicant’s Written Submissions, [33]. 82 VDD1, Affidavit of Patrick Deegan, [34]. -- 61 of 84 -- [2025] SADC 40 60 Is the decision to withdraw from the agreements unfair, prejudicial or oppressive 201 Although there is considerable overlap in the submissions of the applicant as to the bases upon which a stay ought to be ordered, it is convenient to address the issues of unfairness and oppression separately to the contention that the continuation of the proceedings without the prosecution adhering to the agreements it made would bring the administration of justice into disrepute. 202 Whether the prosecution’s decision to resile from the agreements and instead call DB and, in the event she were to give evidence about the disclosures, to challenge her reliability, gives rise to a necessarily unfair trial or such unfairness or unjustifiable oppression as to amount to an abuse of process does not direct attention to whether the continuation of the proceedings seems unfair to the applicant. The question, rather, is whether the withdrawal from the agreements means that the applicant can no longer get a fair trial or that, notwithstanding he can still obtain a fair trial as a matter of law, that trial, because of the circumstances in which it would be conducted, would be so unfair or unjustifiably oppressive as to give rise to an abuse of process. 203 Moreover, and as the authorities to which I have earlier referred make clear, the mere fact that there may be a risk of unfairness (in the relevant sense) in a particular respect would not suffice to grant a stay. In R v Glennon (1992) 173 CLR 592 at 605, in what has been termed an ‘authoritative statement of principle’,83 Mason CJ and Toohey J said: A permanent stay will only be ordered in an extreme case and there must be a fundamental defect of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences. 204 The applicant contends that by withdrawing from the previous agreements, the prosecution have interfered with his entitlement not to be tried unfairly. The trial would be an unfair one or would be productive of such unfairness or oppression as to amount to an abuse because it would be a trial conducted inconsistently with the prosecution’s duty to conduct its case fully and fairly and because of the forensic disadvantage to the applicant arising from (1) the likelihood that DB will not give evidence to the same effect as the agreed facts and (2) the prosecution seeking to controvert or undermine facts which it had previously accepted to be uncontroversial. 205 Those contentions must be evaluated in the context of the most unusual litigation history of this matter. When the applicant was informed of the prosecution’s intention not to adhere to the agreements previously made, he was on the precipice of his eighth trial for these charges. The applicant has been engaged in litigation in this Court in respect of the charges since January 2018.84 83 Dupas v The Queen (2010) 241 CLR 237, [18]. 84 VDD1, Affidavit of Patrick Deegan, [3]. -- 62 of 84 -- [2025] SADC 40 61 The difference between the agreed facts and DB’s prospective evidence if called 206 The premise of the applicant’s argument is that if called, DB’s evidence will not reflect the agreed facts at least in material respects. If it were likely that DB would give evidence in accordance with VDD3 and VDD4 and hence consistently with D12, D13 and P18, the applicant’s complaint of unfairness or oppression may be thought more difficult to sustain, although it would remain necessary to consider his further contention that the prosecution’s intention to challenge DB’s evidence and hence cast doubt on whether the disclosures were made is itself unfair or oppressive. In any event, the absence of unfairness or oppression would not dispose of the submission that the continuation of the proceedings in the absence of adherence to the agreements would bring the administration of justice into disrepute. 207 It is therefore necessary to address the evidence likely to be given by DB in the event she is called. This involves a somewhat predictive exercise. It cannot be known with absolute certainty at this point whether DB would accept that AW made the disclosures to her which she deposed to in VDD3 and VDD4 and neither party sought to call DB on the application to explore this issue. It bears repeating that the question to be decided is not whether the applicant’s trial could or might be unfair or oppressive, but whether it would be. 208 It will be remembered that in VDD4, DB deposed to: 1. The complainant first telling her when she was 7 that LN touched her vagina ‘with his winky or pinky’. This conversation occurred at the Adelaide Zoo. 2. The complainant telling her ‘almost every access visit’ until she was about 16 that LN ‘hurts me and touches me…down there’. 3. The complainant telling her when 11 or 12 that LN was having sex with her. 4. The complainant telling her when she was 16 and staying with DB in Queensland that LN was having sex with her. 5. The complainant telling her around August 2008 at Modbury Hospital about LN having sex with her. 209 Accordingly, on the face of VDD4, the complainant had told DB on three occasions that LN had sex with her and, on other occasions, that LN touched her vagina. This was the basis upon which the facts in P18 were agreed. Most importantly for present purposes, VDD4 and P18 recorded that the complainant had made these disclosures when she was aged 11/12, 16 and in 2008, when in her early 20’s – that is to say, at points in time where it is reasonable to infer a far greater degree of awareness about the significance of an allegation of this kind. 210 In VDP5, the conversations are summarised in the following way: -- 63 of 84 -- [2025] SADC 40 62 1. When the complainant was around 7 or 8, she told DB that LN touched her where her bathers go. One of these disclosures occurred at the Adelaide Zoo. 2. When the complainant was staying with DB in Queensland, she mentioned LN and when asked if she wanted to talk more, the complainant declined. She went and sat by a tree and rested her head against DB’s shoulder before saying the word ‘sex’ but she did not elaborate. This paragraph of the affidavit is introduced in the following way: “I have my statement from September 2021 read to me about when [the complainant] was 16 years of age. I have been asked what, if anything, I remember about the circumstances of that occasion”. 3. DB was not ‘100% sure’ if the complainant spoke to her about LN at the Modbury Hospital. 211 It is apparent that the terms in which the disclosures are described in VDD4 and hence P18 are much clearer, more extensive and precise than in VDP5. The effect of VDD4 and P18 is that the complainant clearly alleged on three occasions that LN was having sex with her. 212 The description of the disclosures in VDP5 is vague at best. No mention is made at all of a disclosure when the complainant was 11 or 12 which, given the apparent purpose for which the affidavit was obtained, is a striking omission that, at best, leaves DB’s position on this disclosure in a state of uncertainty. The disclosure when the complainant was 16 is described in terms that would not permit of a finding that AW was necessarily alleging LN was having sex with her. With respect to the Modbury Hospital conversation, DB deposes to being unsure whether the complainant spoke about LN at all, let alone made an allegation about him. No such uncertainty accompanied her description of the Modbury Hospital conversation in VDD4. 213 Accordingly, if DB were to give evidence consistent with her most recent affidavit, there would be, at least, no evidence that AW made complaints to her mother of sex with LN when she was 16 and in her early 20’s. It seems to me to be more likely than not that DB will also not give evidence about the ‘11/12 disclosure’ because VDP5 is conspicuously silent about it. Even if that is not the case, the differential weight likely to be attributed to false disclosures made when AW was 7 or 8, or even 11 or 12 as opposed to false disclosures made over a number of years when AW was aged 16 and in her early 20’s is perhaps obvious. 214 Importantly to my mind, DB does not retract the assertions of fact contained in VDD4. There is no suggestion in VDP5 that what she deposed to in VDD4 was false, reconstructed or otherwise incorrect. To the contrary, it appears only from VDP5 that DB cannot now remember the conversations to which she had earlier deposed with clarity, notwithstanding that she apparently had VDD4 read to her at least insofar as it dealt with the conversation when AW was 16 and at Modbury Hospital. -- 64 of 84 -- [2025] SADC 40 63 215 I am satisfied that DB’s most recent affidavit suggests she is unlikely to give evidence in terms of VDD4 and hence P18. Clearly enough, the purpose of VDP5, in accordance with the prosecution’s ongoing duty of disclosure, was to put the applicant on notice that DB can be expected to give evidence different to that forecast in her earlier affidavits and therefore the agreed facts. 216 I am further satisfied that it is appropriate to infer that a contributor to the apparent change in DB’s position between VDD4 and VDP5 is the passage of time since swearing VDD4. So much is apparent from the way in which the affidavit records DB’s lack of memory in relation to the disclosures in Queensland and at Modbury Hospital. I am satisfied that it is likely DB would not give evidence in accordance with the comment attributed to her in D12, and the combined effect of D13 and P18, save that whether DB would give evidence in accordance with paragraph (a) of P18 is more difficult to determine because VDP5 does not – at least in the passages tendered – canvass that disclosure at all. 217 As I have said neither party sought to call DB on the application, and I must proceed on the evidence before me. 218 In light of these matters, I reject the submission of the prosecution that if called, DB’s evidence would be ‘substantially the same evidence that was agreed…’ 219 Insofar as the prosecution argued that the unfairness and prejudice identified by the applicant was speculative because DB might give evidence consistently with VDD4 and the agreed facts, that argument cannot be accepted. For one, as I have just said the current state of the evidence before me leads to the conclusion that it is highly likely DB will not give evidence consistently with the agreed facts given the apparent purpose of VDP5 was to put the applicant on notice of a change in her position. Secondly, if the continuation of the proceedings in those circumstances would occasion unfairness or injustice to the applicant, the Court cannot sit back in the hope that DB gives evidence inconsistent with her most recent affidavit and reverts to the position she had deposed to in VDD3 and VDD4, as encapsulated in the agreed facts and D12. Would the applicant’s trial necessarily be unfair or productive of such unfairness or oppression as to constitute an abuse of process 220 Equally importantly for present purposes, the prosecution, having previously had the opportunity to make an assessment as to the credibility and reliability of DB’s proposed evidence had reached the conclusion, on two separate occasions, that her recollection of the conversations in VDD3 and VDD4 should be acted upon through the agreement of facts. 221 I am satisfied that, at the time of the sixth and seventh trials in 2020 and 2021 respectively, had DB been called to give evidence, her evidence would have been consistent with her affidavits. There is no reason to think it would not have been -- 65 of 84 -- [2025] SADC 40 64 and every reason to think it would have been owing to the prosecution’s willingness to agree facts based on her affidavits. 222 As the prosecution determined to agree the facts it did, it was not necessary for DB to be called to give evidence. The decision to agree the facts meant there was no forensic justification for DB to be called. By agreeing facts based on DB’s affidavits, both parties accepted the truthfulness and reliability of the assertions made in her affidavits and made what must have been a considered forensic decision not to challenge any aspect of her account of the disclosures. 223 The consequence of the prosecution’s agreement of the facts is that the applicant lost the opportunity to secure evidence from DB at a point in time much closer to the swearing of the affidavits, but particularly VDD4, which contained clear detail about the disclosures made by AW. It will be remembered that VDD4 was sworn by DB after the seventh trial had completed but before the trial judge delivered his verdict. That affidavit was therefore made contemporaneously with the conduct of the seventh trial. 224 As a result of the prosecution’s withdrawal from the agreements, the applicant is left in the position where, at least on the face of VDP5, DB will not give evidence to the same effect as the agreed facts. 225 The importance of the disclosures recounted by DB in VDD3 and in particular VDD4, and as recorded in the agreed facts, is obvious. On the previously agreed position, the complainant lied to her mother on numerous occasions about having sex with another of her foster brothers. The concession by the prosecution at the seventh trial in particular that this was a false allegation is obviously of vital importance to the defence case. 226 Since the agreement of the facts at the sixth trial and for the three years that passed between the conclusion of the seventh trial and the commencement of the eighth trial, the applicant must have been proceeding on the basis that any further trial of the charges would take place in accordance with the agreements reached at the sixth and seventh trials. So much is clear from Mr Henchliffe’s email setting out the assumptions on which the defence were operating.85 No contrary position had been indicated by the prosecution until 2 or 4 August 2024. 227 The loss of the opportunity for the applicant to secure evidence from DB at the two previous trials by virtue of the agreements in combination with the fact that DB is now unlikely to give evidence consistent with the agreements, represents a substantial forensic disadvantage to the applicant through no fault of his own. 228 It is, of course, an entirely unremarkable feature of criminal litigation that a witness to a relevant event may provide different versions of the event at different 85 See [68]. -- 66 of 84 -- [2025] SADC 40 65 periods in the investigative or litigation timeline. Such a change, by itself, is unlikely to be productive of unfairness or oppression to an accused. 229 What is important is that this case does not involve a mere change in position by DB; the critical and distinguishing feature here is that the prosecution accepted by its agreement of the facts that DB’s previous account of the disclosures was honest and accurate. In other words, the prosecution accepted that the statements were in fact made by the complainant; as a matter of history, the disclosures took place. There has been no prior attempt by the prosecution to call into question the truth or accuracy of DB’s account. Critically, on the complainant’s evidence, the allegations, if made – and the prosecution agreed they were - would be lies. So much was also accepted by the prosecution at the seventh trial. 230 Thus, although the applicant would have the opportunity to cross examine DB as a result of the abandonment of the agreements, his prospects of adducing evidence that reflects the agreed facts has been materially compromised because of the adherence to the agreements by the prosecution over such a lengthy period of time. 231 I accept that the applicant knows the case to be put against him. I accept the applicant’s procedural rights, including to cross examine DB and make submissions about her evidence, are not lost by the proposed abandonment of the agreements. I accept that in the ordinary course, a different decision could have been made at the sixth trial with respect to calling DB. A decision could have been made at the seventh trial to apply to re-open the prosecution case and call DB to give evidence about the matters she deposed to in VDD4. 232 The fact is that different decisions were not made. 233 Accordingly, whilst the prosecution’s submission that the memories of witnesses can change and that a witness not coming up to proof is a common enough vicissitude of the trial process can be accepted at that level of abstraction, the submission overlooks the context in which that issue arises in these proceedings. 234 If this were the first trial of the charges, and the prosecution were proposing to call DB to give evidence having resisted requests from the defence to agree facts derived from an affidavit sworn by her, there could be no complaint that the defence would be prejudiced by the possibility that she might not come up to proof. That abstract scenario bears little resemblance to the actual history of this matter. By its conduct at the sixth and seventh trials, the prosecution represented to the applicant – and indeed to the Court – that it accepted the assertions of fact deposed to by DB were sufficiently trustworthy and accurate that it did not need to call her in order to discharge its responsibilities. 235 The unfairness to the applicant does not therefore arise merely because he might have to cross-examine a witness on a prior inconsistent statement or because -- 67 of 84 -- [2025] SADC 40 66 a witness might not come up to proof; it arises because of the lost opportunity to adduce evidence from DB at a time when the disclosures were fresher, and clearer in her memory, and that lost opportunity has come about because, over a four year period, the prosecution have adhered to agreements that made it unnecessary for the applicant to do so. Against the background of the unique procedural history of this matter, it cannot be suggested that the applicant is in no different place to any other defendant in a criminal trial. 236 Whilst the way in which the trial would be conducted would not be incompatible with the defining characteristics of adversarial and accusatorial justice in the sense that the applicant knows the case to be put against him; would retain the opportunity to exercise his procedural and substantive rights, including to plead not guilty and require the prosecution to prove his guilt; to test the evidence relied upon by the prosecution; to call evidence in his own defence and address the trier of fact, none of that can gainsay that the trial may nonetheless be so unfairly oppressive because of the circumstances in which it is to be conducted as to amount to an abuse. It must be remembered that actionable unfairness and oppression can arise notwithstanding an accused can still have a ‘fair trial’ in the strict sense. I hasten to add in any event that, on my analysis at least, the effectiveness of the exercise of the applicant’s procedural rights has been substantially compromised by the change in position. 237 By way of example, in the likely event that DB did not give evidence in accordance with the agreed facts, cross-examination on her previous affidavits would be a far less useful remedy for the applicant than it would be in many other cases. That is for the obvious reason that the objective for the applicant in any such cross-examination would not be to establish that DB has been inconsistent about her report of disclosures made by AW but that AW in fact made detailed disclosures to her mother about sexual activity with LN. Attacking the reliability of DB’s evidence would serve only to reinforce the forensic disadvantage the applicant will suffer as a result of the reneging on the agreements. 238 I accept of course that the applicant could cross-examine DB on VDD4 with a view to having her agree not only that she had previously deposed to the disclosures but that the disclosures were in fact made and made in the terms set out in the affidavit. Two points should however be made about this contention: first, on the evidence before me, it is speculative to think DB will re-embrace VDD4 given she had key parts of that affidavit read to her when providing VDP5 and that did not, it would seem, refresh her memory. As I have said, the clear reason for obtaining and disclosing VDP5 is to put the applicant on notice that DB’s position has changed. Secondly, and perhaps more fundamentally, there is an incongruence in the applicant now being placed in a position requiring him to establish that AW in fact made these disclosures to her mother, when the prosecution previously accepted the disclosures were in fact made and invited this Court to determine the applicant’s guilt or innocence on that basis. Whilst the significance of the disclosures has always been a live issue between the parties, the past two trials -- 68 of 84 -- [2025] SADC 40 67 proceeded on the uncontentious basis that the complainant had, in fact, made these allegations against LN on multiple occasions. 239 Put another way, the disadvantage to the applicant arising from the withdrawal from the agreements and the likelihood that DB will not give evidence consistently with the agreed facts, cannot be rehabilitated by the applicant challenging DB’s credibility or reliability as a witness; it could only be rehabilitated by having DB adopt as true the content of VDD4. Whilst that is a possibility, on the face of the evidence before me, I conclude that it is oppressive for the applicant to be put in such a position having regard to the procedural history and it is also an unlikely prospect given the content of VDP5 – otherwise, one might have expected to see in VDP5 reference to the fact that although she cannot now remember the detail of the disclosures, DB is confident that what she said in her previous affidavits was correct. 240 Nor is it to the point that had this been the first trial of the charges, it would be orthodox for the prosecution to call DB.86 The procedural history of this matter is not amenable to revision. The fact is this is the eighth trial of the charges. At two of the previous trials, the prosecution has agreed facts in lieu of calling DB. If it were thought to be of such importance for the trier of fact to hear directly from DB, it might have been expected that the facts would not have been agreed at earlier trials or that, at the very least, the prosecution would put on some evidence to explain why the view has now been taken that it is critical to adduce oral evidence from DB, contrary to previous instructions given to trial counsel. 241 Further, given DB is unlikely to give evidence in accordance with the agreed facts, it is difficult to identify an alternative way in which to remedy the unfairness or oppression to the applicant caused by the withdrawal from the agreements. This is not a case where the exclusion of evidence or directions have any capacity to redress the consequences of the change in position. 242 The second limb of the applicant’s complaint of unfairness and oppression centred on the prosecutor’s indication that, in the event DB is called to give evidence, she could not rule out making an adverse submission about the reliability of her account. With respect, it seems all but inevitable that such a submission will be made at least based on the age of the conversations about which DB may give evidence in some form. 243 It is true that a submission to that effect could have been made by the prosecutors at the sixth and seventh trials had DB been called in lieu of agreeing facts. In fact, it would seem a rather obvious submission to make given the age of the conversations to which DB deposed. 244 The fact however is that no such submissions were made because it was deemed appropriate to agree the substance of DB’s evidence because there was no 86 Prosecution Written Submissions, [6]. -- 69 of 84 -- [2025] SADC 40 68 challenge to its credibility or reliability. As Mr Wilson’s email correspondence to senior counsel then acting for the applicant made clear, he was ‘…not going to positively suggest that [the complainant] did not tell [DB] something about one of the [N] boys re: sex…’ or invite the jury to doubt that the disclosures were made. The submission made at the seventh trial was even more intractable, Ms Harper telling the trial judge that the prosecution’s position, on instructions, was that he should proceed on the basis that the agreed facts proved that the complainant had made the disclosures to her mother. 245 The point is that no issue has been taken with the reliability or credibility of DB’s assertions of fact in any respect. It cannot be said that this is a case in which there has always been a question mark over the reliability of DB’s account.87 246 Viewed in isolation, the prospect of the prosecution advancing a submission that sought to undermine or challenge the reliability of a witness it had called would not necessarily give rise to any unfairness or oppression. It is an important aspect of a prosecutor’s role at a criminal trial to assist the trier of fact with submissions about how evidence ought to be evaluated and, if DB were to be called, it might be expected that something would be said about any evidence she gave of these disclosures, given the complainant has steadfastly denied making them. 247 However, this aspect of the argument cannot be viewed in isolation. What is proposed by the prosecution is not only withdrawing from the agreements but entering into a contest about whether the disclosures it previously accepted to have been made were in fact made, by way of challenging the reliability of the witness whose evidence it previously accepted, without reservation, to be credible and reliable. Moreover, the prosecution invited the disposition of these proceedings on the premise that the previous trial judge should accept the agreed facts as true and correct. That concession cannot be divorced from an acceptance that the source of the agreed facts – DB – was herself a credible and reliable historian. 248 The applicant’s complaint needs to be examined on the further basis that, had the prosecution previously adopted the position it now takes, DB would have been called to give evidence at the sixth trial in 2018 or in 2021 at the seventh trial, when her recollection of the conversations was plainly clearer. That is to say, not only do the prosecution now propose to challenge the evidence of a witness that it essentially invited two previous triers of fact to act upon through agreement of facts based on that witness’ account, but the cogency of any prospective attack on DB’s evidence may have improved because of the late departure from the agreements and what is obviously the deterioration in DB’s memory. That a proposed challenge to the reliability of the evidence of a witness is likely to be more meritorious because time has brought about a deterioration in the witness’ memory could not usually be a cause for complaint. That too is an ordinary incident 87 Cf R v Busson [2008] SASC 89, [43]. -- 70 of 84 -- [2025] SADC 40 69 of a criminal trial. But accepting as much in this case would ignore the all- important context supplied by the procedural history and the conduct of the parties. 249 In my view, the proposal to challenge DB’s evidence, in combination with the withdrawal from the agreements, is further demonstrative of the unfairness and oppression of which the applicant complains. 250 Although I have focussed primarily on the prosecution’s decision to withdraw its agreement to D13 and P18, I would apply the same analysis to the current position (which Ms Dunlop has said to be a qualified one) not to agree to the tender of D12 with some qualification. That document, which was compiled by Ms Kenny, and is a record of what she was told by DB, may be admissible pursuant to s 53 of the Evidence Act as a business record. If the document is admissible then it matters not whether the prosecution consent to or oppose its tender. However, it is the combined effect of the document and the agreed facts that is significant and in the absence of the agreed facts, questions might arise about the admissibility of D12 given the exclusionary considerations set out in s 53(2) of the Evidence Act. As the applicant points out, Ms Kenny is now of reasonably advanced age and suffered a stroke two to three years ago (VDD6). She appears to have no memory of her dealings with DB or AW and there is a serious question as to whether she could supply the evidence necessary to lay the foundation for the admission of the document. 251 Again, there was no need for Ms Kenny to be called at the sixth or seventh trials to give evidence about the compilation and content of the document, because the prosecution agreed to its tendered and agreed a series of facts that spoke clearly to the weight that could properly be attributed to the document. There having been no doubt in the past that the document accurately recorded what DP told Ms Kenny and, by virtue of the agreed facts, that what DB told Ms Kenny had come from the complainant, the prosecution’s decision not to agree to the tender of D12 tends to compound the forensic disadvantage attending the abandonment of the agreed facts. 252 I earlier adverted to the well-recognised proposition that the requirement that a trial be fair does not mean it needs to be perfect. Criminal trials are almost invariably tainted by imperfections, many of which inhere in the fact that a trial is a fundamentally human process. In Willmot v Queensland (2024) 98 ALJR 1407 at [102], Edelman J wrote: In trials around Australia nearly every day there are instances where, for forensic reasons, one party is at a disadvantage. A central witness that a defendant might otherwise have called may be deceased or unable to be located. The memory of the central witness for the defendant might be impaired or the central documents that would have been relied upon by the defendant might have been lost or destroyed. None of these matters, by itself, is sufficient to make a trial manifestly unfair. The defendant is placed in an unfortunate position but not an unfair one. Courts have techniques to address and minimise the forensic disadvantage of a party in such cases. As Gleeson CJ said in R v McCarthy, in remarks which are equally apt to civil proceedings: -- 71 of 84 -- [2025] SADC 40 70 Time and time again it happens in criminal proceedings that for any one of a variety of reasons witnesses who may be regarded as important by one side or the other die, or become ill, or lose their memory, or lose documents … [I]t is well recognised that an occurrence of that kind does not of itself mean that a person cannot obtain a fair trial or that proceedings need to be stayed. 253 Similarly, in R v Edwards (2009) 83 ALJR 717 at [31], the High Court said: Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair. 254 In many cases then, the deterioration in a key witness’ memory; the loss of evidence or the loss of an opportunity to secure evidence will not give rise to actionable unfairness or oppression. Amongst other reasons, the right not to be tried unfairly does not, as a general proposition, include a right to the production of all evidence that might have been available had the proceedings, or investigation, been conducted differently.88 In addition, more often than not, an accused cannot demonstrate that lost evidence or an opportunity to secure particular evidence would have necessarily assisted in the conduct of his or her defence. 255 That is not this case. The parties agreed that it was not necessary for all the evidence available to the prosecution to be adduced in the usual way. Rather, in the exercise of their independent forensic judgment, the parties determined that the evidence of DB could be appropriately put before the triers of fact in a particular form. The conduct of the parties carried with it an acknowledgement that this course was appropriate and, in the case of the prosecution, compatible with the discharge of its responsibilities. The applicant has been able to demonstrate that the loss of the opportunity to adduce evidence from DB in the past, which is a direct result of the agreements previously made and adhered to by the prosecution, will seriously prejudice the conduct of his defence because of the change in DB’s position as to the disclosures. 256 In considering the nature and extent of the unfairness and oppression of which the applicant complains – and hence whether this is a case that truly calls for a remedy as drastic as a stay – it is necessary to bring to account that the disclosures which the prosecution previously agreed were made by the complainant are highly material to the assessment of the complainant’s credibility and hence the proper conduct of the defence case. It is, in my view, unjustifiably oppressive for the prosecution to now seek to put in issue whether the complainant made the statements attributed to her by her mother, having agreed that they were made and that a judge of this Court should consider whether the prosecution had proved the applicant’s guilt on that basis. 88 Police v Pakrou (2008) 103 SASR 124, [26] (Kourakis J (as he then was)). -- 72 of 84 -- [2025] SADC 40 71 257 The applicant has demonstrated that, as a result of the abandonment of the agreements, there is more than a mere risk that he will not be able to establish that AW, on a number of occasions, told her mother lies about sexual activity with LN. The unfairness and oppressiveness of which the applicant complains is not just a consequence of the forensic exercise that a trial involves. It is a consequence of the prosecution departing from a position it has twice adopted and which involved unqualified acceptance that the complainant had made the disclosures and that the disclosures were untruthful: that had to follow because the complainant had denied in her sworn evidence any sexual activity with LN and accepted that any statement to that effect to her mother was untrue. 258 In the most unusual circumstances of this case, for the prosecution to now seek to resile from those agreements and adduce evidence from DB in circumstances where it is likely she will not give evidence consistently with those agreements and / or to challenge her evidence, is also apt to give rise to a risk of a miscarriage of justice. The risk of a miscarriage in the absence of the agreements being maintained emanates from the fact that, as things currently stand, the trier of fact at the eighth trial will be invited to determine the applicant’s guilt or innocence on a basis other than the agreed position that the complainant had made the disclosures to DB. That would necessarily represent a distortion of the evidentiary and factual matrix on which the prosecution previously put its case to this Court. The prosecution of these charges since 2020 and 2021 has proceeded on the basis that DB’s account of disclosures made by AW was credible and reliable. The applicant has conducted his defence accordingly. A trial judge was invited to accept as established fact that AW made the disclosures. Findings to that effect were subsequently made. An independent forensic justification for the change in position 259 Insofar as the prosecution argued that VDP5 provides an independent forensic justification for withdrawing from the agreements, that submission, in the peculiar circumstances of this case, must be rejected. 260 By way of a preliminary observation, the submission is unpersuasive given VDP5 formed no part of the decision to renege from the agreements for reasons I have already set out: the applicant’s lawyers were advised on 2 or 4 August 2024 that the facts would not be agreed but DB did not provide her affidavit VDP5 to Detective Johnson until 5 August 2024. That means that, at the time the prosecution announced its intention to call DB, it must have been proceeding on the basis that (1) DB was a witness of truth – were it otherwise, she would not be called as part of the prosecution case; (2) DB would give evidence consistent with VDD4 and, therefore, the most important of the agreed facts (P18). The chronology of the decision-making process does, to my mind at least, make the determination not to adhere to the agreements all the more curious, although calling DB would obviously present an opportunity to address the reliability of her evidence. -- 73 of 84 -- [2025] SADC 40 72 261 It is true that DB’s position in respect of the disclosures has now changed. However, it is important that in VDP5, DB does not recant her earlier affidavits or suggest in any way that they did not accurately represent the state of her memory at the time they were sworn. This is not a case where a witness is now acknowledging that a previous version of events given by them was wrong or false. 262 The situation would, to my mind, be very different if DB no longer maintained the correctness of her earlier affidavits. In those circumstances, it could readily be said that it would be inappropriate for the prosecution to agree facts based on the account of a witness who now acknowledges what they previously said to have been wrong, false or contrived.89 There is no evidence before me to this effect. Rather, the change in this case seems to be nothing more than a consequence of the passage of time. It cannot be said that the agreed facts were built upon a legal or factual misconception about the import of DB’s evidence 263 Having had the opportunity to call DB at earlier trials, the prosecution considered it unnecessary to do so because it obviously took the view that her evidence was credible and reliable and could be appropriately agreed. The forensic decisions made by the prosecution have had the consequence that the applicant has now lost the opportunity to secure oral evidence from DB about the disclosures when the facts were no doubt fresher in her mind. There is no question that, on the face of the materials before me, the applicant will be in a position of considerable forensic disadvantage if the facts are not again agreed. 264 In circumstances where the accuracy and truthfulness of the witness’ memory had not previously been doubted by the prosecution; had been reduced to writing in affidavits obtained by investigating police; and used as the basis to agree facts upon which the Court was invited to adjudicate the applicant’s guilt or innocence, the change in position by DB because of the effluxion of time does not contraindicate the appropriateness of adhering to the agreed position. If anything, it reinforces why there should be adherence to the agreements. The authorities to which I will refer when considering whether a model litigant reneging on agreements or undertakings it has made in the context of criminal litigation is apt to bring the administration of justice into disrepute reinforce the public interest in the prosecution adhering to the agreements it made. 265 Given what was accepted in the formulation of agreed facts based on DB’s previous affidavits, the change in her memory does not supply a principled basis upon which the applicant should now be made to bear the forensic disadvantage that comes from the passage of time and the withdrawal from the agreements, particularly having regard to the unfortunate chronology of these proceedings. 266 It is unfairly and unjustifiably oppressive for the applicant to now be put in the position of having to establish facts which the prosecution has twice agreed were established. 89 LJW v The State of Western Australia [No 2] [2007] WASCA 275, [15]-[17]. -- 74 of 84 -- [2025] SADC 40 73 Does resiling from the agreements bring the administration of justice into disrepute 267 I would also conclude that to allow the proceedings to continue in circumstances where the prosecution have reneged on the agreements it has previously made and invited this Court to act upon, would, in the most unusual circumstances of this case, bring the administration of justice into disrepute. 268 I would reach that conclusion for a number of reasons: one, no explanation, let alone a satisfactory explanation, has been put before me to justify the departure by a model litigant from proper and authorised agreements made by its officers in the conduct of this case. There is a persuasive public interest in prosecuting and investigative authorities being held to the representations, bargains or agreements it makes in the conduct of serious criminal litigation, other than where there is good reason not to do so. 269 Secondly, there is a degree to which the decision to abandon the agreements, call DB in lieu and criticise her evidence involves controverting the basis upon which the prosecution previously invited this Court to make a determination of the applicant’s guilt or innocence. Whilst the principles that inform the concept of incontrovertibility may not have direct application in the circumstances of this case, they serve as a useful prism through which to examine the appropriateness of the prosecution’s decision. The public interest in prosecuting authorities adhering to agreements 270 The passage from La Rocca I set out earlier establishes that the administration of justice may be brought into disrepute in any number of ways. The conduct of parties may involve a misuse or manipulation of a court’s procedures such that to allow proceedings to continue would bring the administration of justice into disrepute. Alternatively, a feature of the litigation might tend to erode public confidence in the justice system or compromise the institutional integrity of a court and its responsibility to dispense justice impartially and independently. The administration of justice may be brought into disrepute by proceedings that subvert the rule of law or basic tenets of our system of adversarial and accusatorial criminal justice, or where a miscarriage of justice would likely result from the continuation of the proceedings. Put another way, broader considerations relating to the importance of justice being done and being seen to be done, may inform whether criminal proceedings are an abuse of process. 271 In R v Mohi (2000) 78 SASR 55, Martin J collected a number of authorities that emphasise the public interest in holding investigating and prosecuting authorities to agreements, undertakings or representations they make, commencing with Chu Piu-wing v Attorney-General [1984] HKLR 411 at 417-418, where the Court of Appeal of Hong Kong observed: We think that there is a clear public interest to be observed in holding officials of the State to promises made by them in full understanding of what is entailed by the bargain. -- 75 of 84 -- [2025] SADC 40 74 272 Whilst those remarks were made in the very different context of the setting aside of a subpoena served on a witness in circumstances where officers of the Independent Commission Against Corruption had previously enlisted the assistance of the witness on the basis of an undertaking that they would not be required to give evidence, they reflect the strength of the public interest in adherence by the executive to agreements it makes. 273 In R v Betesh (1975) 30 CCC (2d) 233, the Canadian Federal Attorney- General gave an undertaking to settle a strike by postal workers that workers would not be prosecuted for any criminal offences they had committed during the strike. A postal worker was subsequently charged with assaulting a security guard hired to protect post office property during the strike. The worker applied for a stay. Although questioning the ‘wisdom of the undertaking’, the prosecution of the postal worker was stayed. Graburn J said at 251 and 252: The abuse [of the process of the Court] lies in the Crown reneging on an agreement made and presented to a court. To renege on such an agreement constitutes an abuse of process of the court. The Crown is expected to honour the agreements it has made in relation to prosecutions. To this I would add that the Crown is expected to honour such agreements whether presented to the court or otherwise. … Nevertheless, it remains my view that the Courts ought not to countenance a breach of an agreement by the Crown… One final word: it may be said that my judgement today deprives a citizen of access to the Courts for redress of a wrong allegedly done to him. Such an assertion is untenable on two grounds. This is a criminal prosecution. Hence it is not the citizen, but the State which has been denied access to the Court. Nor is it the Court which has denied access to the State in that Court. The State has itself denied itself access to the Court by virtue of the agreement… … The Crown is bound in my view by its undertaking…it constitutes an abuse of process of this Court for the Crown to violate and breach its undertaking. 274 R v Crneck (1980) 116 DLR (3d) 675 was a case of manslaughter involving three accused. Prior to being charged, one of the accused, B, provided a statement to the police on the basis of an agreement with then Crown counsel that the statement would not be used against her and, if consistent with known facts, would see her called as a Crown witness instead of being charged and tried with her co- accused. After receiving B’s statements, Crown counsel, in consultation with investigators, determined to proceed only against one of the accused, C, and to call B to give evidence at trial. The effect of this decision was that both B and the third accused, S, were not to be tried. When Crown counsel’s undertaking was conveyed to B, she agreed to give evidence at C’s trial. S was also informed that the Crown would not be proceeding against him. -- 76 of 84 -- [2025] SADC 40 75 275 Upon new Crown counsel taking over conduct of the matter, it was determined that it was contrary to the interests of justice not to proceed against B and S, who were informed that the Crown would not honour the undertaking with respect to B and the decision made not to prosecute S. Both B and S sought a stay of the proceedings. B’s application was upheld. 276 In dismissing S’ application, Krever J observed (at 680) that the decision not to prosecute was essentially a unilateral decision made by the prosecuting authority: it ‘was not the subject of an agreement not to continue the prosecution, and…there was no consideration from [S] for the unilateral decision’. 277 As to B’s application, Krever J commented that there was considerable merit in the contention that ‘For the Crown to have reneged on an agreement to extend immunity from prosecution to an accused person in return for co-operation from that person, which is in fact given, undermines the administration of justice and brings the entire system of justice into disrepute’. The application was ultimately allowed however for the following reason (at 686): If the Crown is permitted to withdraw from the agreement to discontinue the proceedings against [B] after she has fulfilled her part of the bargain, the Crown, in my opinion, will have caused serious prejudice to her in her defence on this charge. It is important to keep in mind that she is jointly indicted with [C], who is not a party to the agreement and cannot, therefore, be affected or prejudiced by it. If [B] were to take the witness-box in her own defence, as, of course, she has a perfect right to do, at the trial, and were to put the blame for the deed on [C], [C’s] counsel would be entitled to cross-examine [B] on her credibility. He would be entitled, in the course of so doing, to refer to the agreement…and to suggest it was an attempt to obtain immunity from prosecution and thus avoid conviction by blaming [C]. The jury would thus learn of the agreement, and seeing [B] in the prisoners’ box, might possibly draw an inference that for the Crown to have reneged on the agreements points to her guilt. If that can be overcome by a proper charge, which I doubt, the attack by [C] on [B’s] credibility by reference to the agreement, which as I have indicated, counsel for [C] would be entitled to make, could not. [B] might well thus be deterred from taking the witness-box in her own defence and be deprived of, or suffer a diminution in, a real opportunity of making full answer and defence. I conclude in the circumstances of this case that, since she is jointly charged with [C] who cannot be affected by the agreement to which she was not a party, [B] would suffer oppression or serious prejudice within the meaning of the words in the doctrine of abuse of process. The cumulative effect of this consideration and the principle enunciated by the authorities that the Crown must be expected to carry out its agreement is enough, in my view, to bring this case within the category of ‘cases of the most exceptional circumstances’… 278 Returning to R v Mohi (2000) 78 SASR 55, Martin J stayed the prosecution of an accused charged with assisting an offender. The accused was present when two others committed murder but for 14 months following the death of the deceased, he was treated by investigators as a witness; was told that investigators did not wish to charge him and wanted him as a witness; had given two statements in narrative form to investigators without caution; was identified on the Information charging murder as a witness; had been subpoenaed to attend the -- 77 of 84 -- [2025] SADC 40 76 murder trial as a witness. Notwithstanding this sequence of events and representations, the accused was ultimately charged with assist offender and presented for a joint trial with the two men accused of murder. 279 In granting a stay, Martin J pointed out that, although much of the impugned conduct was conduct of the investigators, the prosecution had effectively adopted the representations made by investigators and had not demonstrated any good reason justifying the change in position. His Honour explained at [46]-[48]: In my opinion, it is no answer to the cumulative force of these facts to say that those concerned with the prosecution of Williams and Hersbach within the Office of the Director had not finally decided whether the applicant was to be a witness or an accused. If of any significance, the fact that consideration was first given to this issue in April 1999, but was not resolved in the mind of those making the decision until February 2000, supports the case for the applicant. From the perspective of the accused and the community, the reassurances given by the investigating officers that the applicant would not be charged were confirmed and adopted by the conduct of the Director through his officers. That adoption came in a number of forms and over a lengthy period. No change in circumstances occurred which could amount to good reason for a change in the ostensible position previously taken by the Director. The community expects that the police will use all legitimate investigatory techniques in the investigation of serious crime. Those techniques include the use of accomplices and lesser offenders as sources of information and as witnesses. The successful prosecution of persons who commit serious crimes is often dependent upon the cooperation of such persons. To that end it is in the interests of justice that such persons be encouraged to cooperate with investigating and prosecuting authorities. The administration of justice will be brought into disrepute if without good reason, the investigating and prosecuting authorities are permitted to decline to comply with the undertakings or assurances given to such persons that they will not be charged and to pursue prosecutions against those to whom such undertakings or assurances have been given. I stress that these remarks are made in the context of the particular circumstances relating to the applicant. I also stress that the mere fact that an investigating officer has treated a person as a witness and given an undertaking that the person would not be prosecuted will not, in ordinary circumstances, in itself justify the exercise of a discretion to stay a prosecution against such a person. For example, if the Director had decided in April 1999 that the applicant should be charged, while the conduct of the police in their dealings with the applicant may have resulted in the exclusion from evidence of the two statements, in my opinion that conduct would not have justified the exceptional course of staying the prosecution. In such circumstances the Director would not, by the conduct of his officers, have ostensibly adopted the assurances given by the investigating officers. I regard the apparent adoption by the Director, over a lengthy period, of the assurances given by investigating police, and the reliance by the Director upon the applicant's statements before the committing magistrate in the matter of Williams and Hersbach, as particularly important features. The absence of good reason for a change in 280 Central to the decision to grant a stay in each of the above cases was the proposition that the Crown should not and cannot lightly depart from representations and agreements made by its officers, where a person or party to litigation has relied on those representations and agreements to their detriment. -- 78 of 84 -- [2025] SADC 40 77 281 I acknowledge that cases involving the reneging on something approximating the conferral of an immunity or an undertaking not to prosecute in exchange for co-operation may present a starker example of an abuse of process. Thematically, however, there are common threads between those scenarios and that under consideration. In each case, it is the adoption by the prosecuting authority of a carefully considered position, which the accused acts on to his detriment, and the subsequent resiling from the stated position, that has the tendency to undermine the administration of justice. Where the decision to renege on an agreement, representation or undertaking is also productive of forensic disadvantage, it may more readily be concluded that the continuation of the proceedings would be an abuse of process. 282 It is of further significance in my view that, here, the agreements made by the prosecution were not informal agreements that remained as between the parties. The agreements were formalised into a joint position of the parties and presented to triers of fact in this Court on two occasions. At the seventh trial, the prosecution unequivocally invited the trial judge to find the facts in the agreements proved and to make his assessment of the complainant’s credibility and reliability on that basis. 283 Criminal litigation is an adversarial exercise, and, as I have acknowledged, it is for the prosecution to determine how to conduct its case. Any such decisions however must be viewed in the context of the overlay provided by the prosecution’s responsibility to conduct its case fully and fairly. Where the conduct of the prosecution case is or would be productive of unfairness, injustice or would undermine public confidence in the administration of justice, the Court must take appropriate steps to protect the integrity of its processes. 284 The proper functioning of the criminal justice system requires that the parties to litigation are able to rely on the representations made by and agreements made with their opponents about how a case is to be conducted. That is, to my mind, all the more imperative where one party is a ‘model litigant’. The Court must also be able to rely on the representations of or agreements made between parties and presented to the Court. 285 It is a most significant thing for a model litigant to invite a court to proceed to determine a case on a particular basis, and to find certain facts proved based on an agreement it has reached with its opponent, only to turn around subsequently and abandon that agreement and foreshadow an intention to contest or at least cast doubt on those facts. If there is a compelling reason for such an approach to have been taken in this case, the prosecution has twice declined the opportunity to put forward evidence explaining as much. 286 The prosecution’s late decision to abandon the agreements it properly made on two prior occasions and invited the Court to act upon, has compromised the applicant’s ability to establish facts that are of great importance to the proper conduct of his defence of serious criminal charges and which the prosecution -- 79 of 84 -- [2025] SADC 40 78 previously accepted to be established. The late departure from agreements properly made and adhered to on two occasions by the prosecution in circumstances where it now apprehends that DB will not give evidence consistent with the agreed facts – which is not attributable to any revision by her of the truthfulness of her initial accounts – is apt to bring the administration of justice into disrepute. 287 Furthermore, having carefully considered and agreed facts based on an acceptance that the affidavits sworn by DB at the time were accurate and truthful, it is, in my view, inappropriate for the prosecution to now seek to go behind those agreements and its acceptance of DB’s previous account as a reliable and credible narrative. I acknowledge, at one level, the tension that might be thought to arise from continuing to agree the facts when DB has ‘walked back’ the vividness or clarity of her memory about these conversations. However, in the unusual circumstances of this case, the manner in which that change has come to light does not justify reneging on the agreements for the reasons I previously set out at [259]- [266]. 288 In circumstances where the prosecution expressly invited this Court to find as proved the facts contained in the agreements D13 (in combination with D12) and P18, it would bring the administration of justice into disrepute to permit the presentation of a prosecution case that calls into question the existence of those facts. 289 That is not to say that parties will always be irrevocably bound by agreements they enter or representations they make. Much will depend on the circumstances. Representations made or agreements entered on a mistaken or erroneous factual or legal basis may need to be departed from in certain cases. 290 That cannot be said of these agreements. As I have said earlier, in cases of this kind, it not uncommon for the parties to agree that a witness has made a prior statement inconsistent with their evidence. That approach is often taken for pragmatic reasons in lieu of having a prior inconsistent statement proved in accordance with s 28 or 29 of the Evidence Act. There is nothing inherently wrong or unorthodox about the prosecution agreeing the facts that it agreed in this case. 291 A different prosecutor appearing at the sixth trial may have declined to agree the facts in D13 and called DB to give evidence. The prosecutor at the seventh trial not only adhered to the agreement in D13 but agreed additional facts based on VDD4, namely, P18. The prosecutor at the seventh trial could have called DB but decided not to. Instead, a further affidavit was taken from DB and based on that affidavit, additional agreed facts were put before the Court. 292 As to Ms Dunlop SC’s submission that the eighth trial is a ‘new trial’ such that what is proposed by the prosecution here cannot be described as reneging on the agreements because they had in fact not yet been again made at the eighth trial, that submission should be rejected. Whatever the precise meaning to be attributed to the words ‘new trial’ in s 158(3) of the Criminal Procedure Act, that meaning -- 80 of 84 -- [2025] SADC 40 79 would be informed by the fact that inherent in the granting of a ‘new trial’ in the circumstances contemplated by the provision is that there has been a previous trial of the matter before the Court of Appeal, which because of error, must be reconsidered. In any event, broader considerations of the type I have already traversed would reinforce the importance of a model litigant adhering to agreements it had made at earlier trials, particularly where the effect of those agreements is to render the existence of certain facts uncontroversial. 293 The combined effect of the procedural history of this matter; the circumstances in which the agreements were first made and adhered to; the import of the agreements and what they reflected about the prosecution’s view of DB’s account; together with the forensic disadvantage to the applicant in now being met with the suggestion by the prosecution, contrary to those agreements, that there is a live issue whether the lies were in fact told by the complainant and whether DB is a reliable historian of such disclosures, is what pushes this case into the category of being ‘exceptional’. 294 Moreover, there has been no evidence put before me to explain why the previous forensic decisions were wrongly made or inappropriate or why it is now proper for the prosecution not to adhere to the agreements. 295 Informed forensic decisions were made by the prosecution. Any dissatisfaction the prosecution now has about the course taken at the sixth and seventh trials cannot, without more, suffice to justify it reneging on the agreements, at least not in the absence of a satisfactory explanation. Re-litigation of facts previously agreed 296 As I earlier mentioned, I also consider that the abandonment of the agreements and the proposal to call DB, now knowing that her evidence is very unlikely to reflect the previously agreed facts, and to make a submission that the trier of fact ought to approach her evidence with caution, involves something approximating an attempt to re-litigate issues that, at the encouragement of the prosecution, a judge of the Court has previously determined in a particular way (namely, by finding that AW had been lied to her mother about sex with LN). 297 Although an imperfect analogue, some assistance can be derived from the approach taken in Rogers v The Queen (1994) 181 CLR 251, where three members of the High Court held that it would be vexatious, oppressive and unfair for the prosecution to adduce evidence of confessional statements said to have been made by the accused that had been held in earlier proceedings to have been involuntarily made. The vice in Rogers was that the conduct of the prosecution exposed the accused to re-litigation of an issue that had already been finally determined in earlier proceedings and hence the focus was on the principles of incontrovertibility. Nonetheless, the decision helps to understand how the proposed re-litigation of an issue may amount to an abuse of process. As Deane and Gaudron JJ, with whom Mason CJ agreed, explained at 280: -- 81 of 84 -- [2025] SADC 40 80 In the circumstances, tender of the records of interview constitutes a direct challenge to the 1989 determination which was a final determination, or became so, once verdicts were returned. The challenge is one which invites ‘the scandal of conflicting decisions’. And it jeopardises public confidence in the administration of justice: in a context where the onus of proof would be the same and there is no claim of ‘fresh evidence’ or fraud, a determination that the confessions were made voluntarily would undermine the incontrovertible correctness of the verdicts of acquittal returned in 1989; equally, there would be a shadow over any conviction on the charges in the present indictment if confessional statements are admitted in evidence notwithstanding the earlier judicial determination that the circumstances in which they were made did not support a finding of voluntariness. 298 There are obvious differences between this case and Rogers but it provides some useful conceptual framework within which to examine the current problem. It is also important to remember that what constitutes an abuse of process cannot be defined by reference to fixed categories or past decisions. 299 To return to this case, at two previous trials of these charges, the trier of fact was to be (sixth trial) or was in fact invited (seventh trial) to determine the ultimate issues in dispute on the basis that the complainant had lied to her mother about sex with LN. In the case of the seventh trial, the prosecution unequivocally told the trial judge that he was being asked to accept as proved that the complainant had made those disclosures. 300 There is therefore an extent to which this shift in position involves an attempt to re-litigate facts that the prosecution had previously asked two triers of fact to accept as established or, in the language of Taufahema, to advance inconsistent factual allegations. I accept that the trial judge at the seventh trial was not bound to accept the agreed facts or the concession of the prosecution that AW had lied.90 Whilst clear reasons would have been required in support of a decision not to accept the agreed facts or the concession of the prosecution, the agreement of and position taken by the parties could not, as a matter of law, bind the trier of fact. However, the agreed facts were accepted, at the encouragement of the prosecution, and the trial judge did, as the judgment of the Court of Appeal confirms, find in consequence that AW was shown to have lied to DB, albeit he did not consider that this demonstrated a disposition on her part to make false allegations about sexual conduct.91 301 It may be further accepted that the judge hearing the eighth trial will not be constrained to make the same findings as the judge at the seventh trial did, but it is a different question whether the prosecution’s intention to conduct the trial again absent the agreements is an abuse of process. 302 The prosecution’s change in position creates the potential for the determination of the applicant’s guilt or innocence on conflicting bases. One basis – put to the trial judge at the seventh trial - involves the acknowledgment and 90 See, in the different context of sentencing, Malvaso v The Queen (1989) 168 CLR 227, 233; GAS v The Queen (2004) 217 CLR 198, [31]; Barbaro v The Queen (2014) 253 CLR 58, [47]. 91 Park (a pseudonym) v The Queen [2022] SASCA 132, [35]. -- 82 of 84 -- [2025] SADC 40 81 agreement by the prosecution that the complainant had told lies; the other - which it appears the prosecution proposes to put to the trier of fact at the eighth trial - involves a contest about those facts. There is a substantial anomaly in the prosecution proceeding at earlier trials on the basis that, as a matter of factual history, these disclosures were made by the complainant and now seeking to present a case with a view to revisiting that very important concession. Conclusion 303 As a general proposition, I accept that the presentation of a prosecution case is a matter for the prosecution. The passages I have cited earlier from Nguyen demonstrate that the discretion reposed in prosecuting authorities as to the conduct of a prosecution is not reviewable. 304 However, decisions that affect the way in which a prosecution is conducted cannot be divorced from the proceedings in which those decisions manifest. If the manner in which it is proposed to conduct a prosecution would occasion irremediable unfairness, prejudice or oppression to an accused or would otherwise bring the administration of justice into disrepute, a court is duty bound to protect its processes from becoming an instrument of injustice. 305 In making a decision as to whether the conduct of a trial is relevantly unfair, oppressive or would otherwise bring the administration of justice into disrepute, it is essential that the interests of the community in the prosecution of serious criminal offences and the desire to hold those who perpetrate them to account be given substantial weight. A stay is not to be used to punish a party. 306 Furthermore, the conferral of jurisdiction to hear and determine serious criminal proceedings carries with it a prima facie expectation that the jurisdiction will be exercised to resolve such disputes. Refusing to exercise jurisdiction is an extreme step to take given the court’s responsibilities to independently adjudicate on legal contests in accordance with the defining characteristics of accusatorial and adversarial justice. 307 I have borne steadfastly in mind the importance of the trial of these proceedings to the applicant, the complainant and the community in reaching my decision. I acknowledge that the applicant is charged with very serious offences and that the need for these allegations to be resolved through judicial determination is a powerful countervailing consideration. 308 The procedural history of this matter is both unique and unsatisfactory in many respects from the perspective of the complainant, the applicant and the community. It gives rise to a pressing need for a final determination as to whether the applicant is guilty or not guilty of some or all of the charges. I acknowledge that staying the proceedings, even conditionally, will leave the parties in a state of limbo until such time as the condition on which the stay is granted is discharged or the order otherwise set aside by the Court of Appeal. -- 83 of 84 -- [2025] SADC 40 82 309 The law does not however pursue a resolution of criminal charges at all costs.92 310 I have reached the conclusion that this is an exceptional case. In light of the prosecution’s change in position, a conditional stay is the only appropriate remedy for what I consider would be a trial that would be so unfair or unjustifiably oppressive to the applicant or would otherwise bring the administration of justice into disrepute. 311 I reiterate that it should not be thought that the conclusion I have reached means that the prosecution will always, or even more often than not, be bound to an agreed position in relation to facts or exhibits. It is not difficult to contemplate various scenarios in which the departure from a previously agreed position will be entirely unremarkable. Indeed, in most cases, and without more, it is unlikely to be problematic for the prosecution to agree facts at trial and, following a successful appeal, to withdraw its agreement and instead call witnesses to give evidence about those facts. 312 This case stands very much on its own because of the extraordinary litigation history and the extent to which the prosecution invited or intended to invite triers of fact in this Court to determine the applicant’s guilt or innocence on the uncontroversial basis that the disclosures were made by AW. My decision reflects my view that abandonment of the agreements, which the applicant has relied on for the past 4 years in conjunction with the deterioration in DB’s memory, which casts no doubt on the accuracy of her previous account which was accepted by the prosecution as credible and reliable, compromises the integrity of the administration of justice and brings about a trial that would be unfairly or unjustifiably oppressive to the applicant. 313 The proceedings are to be stayed until such time as the grounds upon which I consider the continuation of the prosecution to be an abuse are remedied. 92 R v Davis (1995) 57 FCR 512, 521. -- 84 of 84 --