DJA v Director of Public Prosecutions (Queensland) [2006] QDC 330

1 WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. [2006] QDC 330 DISTRICT COURT CRIMINAL JURISDICTION JUDGE ROBIN QC Indictment No DCR121 of 2006 DJA Applicant and DIRECTOR OF PUBLIC PROSECUTIONS (QUEENSLAND) Respondent TOWNSVILLE ..DATE 18/07/2006 ORDER Catchwords Criminal Code s590A - unsuccessful application for permanent stay of charge of rape for abuse of process insofar as the indictment placed the offence in a three-month period after the police Prosecutor had sought an amendment at committal to allege a specific date in reliance on the evidence of a person to whom complainant had been made by telephone (following initial reservation of a period of months) - notified alibi for the specific date - trial venue changed to district of alleged offence where appeared committed to Townsville was through inadvertent circumstances in which it was directed cross-examination of the complainant in advance of the trial. -- 1 of 12 -- 18072006 T17/KLW M/T TSVDC2/2006 (Robin DCJ) 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: There is an indictment before the Court charging the defendant with one count of rape which was presented before Judge Pack on the 10th of April 2006. The offence is alleged to have happened at Charters Towers on a date unknown in a period which effectively covers June, July and August 2004. That way of identifying the date of the offence has produced the application which the defendant's solicitors filed on the 5th of July 2006 seeking a permanent stay of the indictment which is said to have been presented on the 7th day of April. That would appear to be the date of signature of the document by Mr Richards. It also sought in the alternative that the trial be transferred to Charters Towers and that the defendant have an opportunity to cross-examine the complainant before the trial. As to the stay, the application is brought on the basis of the way in which the prosecution apparently responded to a notice of alibi dated the 2nd of February 2006, which appears to place it beyond doubt that as at the date ascribed to the alleged offence. The defendant was in a secure ward at Townsville General Hospital (or in the process of being taken there which began with an attendance of an identified medical practitioner at Charters Towers). The general understanding which the Court has of the circumstances is that the 16 year old complainant and her mother were known to the defendant and had frequently visited him at his property in the Charters Towers area, which offered -- 2 of 12 -- 18072006 T17/KLW M/T TSVDC2/2006 (Robin DCJ) 3 ORDER 1 10 20 30 40 50 60 inducements to the complainant such as the possibility of horse riding. The offence is said to have happened on an occasion when the complainant was there on her own. I have the impression, which might be unfair to bind any party to, that on that occasion she had been picked up by the defendant from her place in Townsville with the mother's knowledge and taken to Charters Towers. In the first instance the date ascribed to the charge was the month of July 2004. That was then expanded to cover also the month of August 2004 by amendment. At the committal the police Prosecutor sought and was granted leave to amend the dates in the charge to place it on the specific date of the 25th of June 2004. The explanation for that is that a statement had been obtained by police when Mr Bridge, a young man from Victoria who had befriended the complainant on the internet. -- 3 of 12 -- 18072006 T18/MM M/T TSVDC2/2006 (Robin DCJ) 4 ORDER 1 10 20 30 40 50 60 She had called him very soon after the alleged offence from the defendant's premises. His statement dated the 10th of August 2005 speaks of telephone contact on the 25th of June 2004, which was suggested in the statement to be a significant date because it followed attendance at an associate's birthday party where Mr Bridge was living in Victoria. The appearance of things to the defence side is that the way in which the indictment ascribes a time to the offence charged deprives the defendant of the advantage of his alibi which runs into the first couple of days of July 2004. Mr Middleton accepts that that is not by any deliberate action of Mr Richards who signed the indictment in ignorance of the giving of the notice of alibi. Nonetheless, Mr Middleton submits, and I will accept for the purposes of today, that it may still be open to proceed on the basis of the effect of what has happened and that it may be possible to describe that in terms of abuse of process. I have the advantage of reasons of Judge McGill SC in R v ZSK [2006] QDC 016, in which a similar application was successful. His Honour canvassed the authorities in a very thorough way, in particular Jacobs [1993] 2 Qd R at 541 (in which the dissenting judgment of Derrington J indicates that there is rarely a clear answer in circumstances like the present). He relied principally on a South Australian decision, R v H (1995) 83 A Cr R 402. -- 4 of 12 -- 18072006 D.1 T19/LKW M/T TSVDC2/2006 (Robin DCJ) 5 ORDER 1 10 20 30 40 50 60 A permanent stay was ordered by his Honour in respect of count 1, which charged rape. Here, the only charge faced by the defendant is a single count of rape. In ZSK there were five counts of indecent treatment of a child under 12. There were two complainants who were twin sisters. The first statement by the relevant complainant denied that what became the relevant occasion there was anything in the nature of rape. In a later statement, for the first time she suggested there was. There was in ZSK a notice of alibi which led to the prosecution in the indictment charging a much longer period than had previously been suggested as the time within which the rape happened. His Honour was firmly of the view that the purpose of provisions about alibi notices in section 590A of the Criminal Code is to have the assertions of alibi tested, rather than to allow the prosecution to amend charges in respect of dates to circumvent an asserted alibi. The authorities indicate that the date ascribed to such a charge may not always be essential or an element, but it is clear that a particular prosecution may be so conducted that it becomes central. My reaction to the present circumstances is that too much ought not to be placed at this stage on the date Mr Bridge gave. It seems to me inherently possible, for all his apparent certainty, which certainly characterised Mr -- 5 of 12 -- 18072006 D.1 T19/LKW M/T TSVDC2/2006 (Robin DCJ) 6 ORDER 1 10 20 30 40 50 60 Middleton's cross-examination of committal, that he was mistaken about the date - which it would seem he was asked to supply as long as some 10 months after the event, or if the Crown is right in now considering that the right date appears to be August 2004, nine months or so afterwards. It might be noted that Mr Bridge was uncertain of other details, such as the identity of the person whose birthday was being celebrated, relying on the passage of time. There is plenty of room for investigation here as to how Mr Bridge came up with the date. One may speculate, I suppose, that it was someway suggested to him by police or even by the complainant, but that is pure speculation. Mr Richards has asked that the application not be determined today, having foreshadowed yesterday that that is what he would do. He was awaiting the return to duty of the police officer in charge of the matter to obtain further information. -- 6 of 12 -- 18072006 T21/CAB M/T TSVDC2/2006 (Robin DCJ) 7 ORDER 1 10 20 30 40 50 60 Information still sought, which Mr Middleton says his people are after as well, relates to telephone records which are taking some time to locate or become available. When they are, it is to be hoped they provide reliable evidence of phone calls made from the defendant's number to Mr Bridge's mobile number. The two of them did not know each other and it would be a reasonable inference that a call from the former number to the latter might have been made by the complainant, as she says. For the moment it is quite unknown whether any call or calls will be identified any time in June 2004, August 2004 or indeed any other time. There is an interesting discrepancy between statements of the complainant's mother, who, in her initial statement to police dated 17 July 2005, which was tendered at the committal, indicates in paragraph 20 a timeframe of "in the school holidays in July or August 2005", whereas a later version of the statement, which contains some additional material, deals with the same topic in paragraph 22, in terms of "the school holidays in June or July of 2004". It is some time since there have been school holidays in the month of August in this State. That observation is not intended to express any view of what the lady was getting at. -- 7 of 12 -- 18072006 T21/CAB M/T TSVDC2/2006 (Robin DCJ) 8 ORDER 1 10 20 30 40 50 60 At present it seems the prosecution case depends for its success on devaluing the testimony of Mr Bridge. There are so many possibilities for his being mistaken although he expresses confidence about the date. The complainant, who might be thought to have more reason to recall it, seems never to have been confident in ascribing a time to the alleged offence. Except on the day of the committal, the prosecution has never presented a specific date as material. I think it would be a wrong exercise of discretion to grant the permanent stay he prayed for, even on the basis, which I think is correct, that a "permanent stay" is reviewable by the Court if circumstances change. Mr Middleton helpfully supplied a reference to an unreported decision of Cox J in the Supreme Court of South Australia of the 4th of March 1993, DPP v Polyukhovich (No 2). On analysis the situation is one in which, for a brief period, there seemed to be a high degree of specificity about the date, which may or may not be justified. For all the defendant's disappointment in being deprived of what seemed a devastating alibi, what is occurring is that, for the moment, he is back in the difficult position of facing a charge framed in terms of a wide period of time. I am only too aware that High Court decisions in particular pay specific attention to the severe difficulty faced by defendants, the -- 8 of 12 -- 18072006 T21/CAB M/T TSVDC2/2006 (Robin DCJ) 9 ORDER 1 10 20 30 40 50 60 more severe the longer the charge is placed in the past, in coming up with an alibi to meet a charge when there is minimal information given as to the date ascribed to it. I am prepared to leave open the application for a stay. I would not be prepared to accede to it today. The expectation of the parties is that some resolution of things will be arrived at when telephone records are available. The Crown will be in trouble if these confirm what Mr Bridge has been saying. It would be assisted if they suggest Mr Bridge is in error, perhaps. Assuming the charge has to proceed there are two further matters. One concerns the venue of the trial as opposed to the venue for further interlocutory occasions like the present. It is clearly suitable to all parties to have Townsville as the venue for those. The Magistrate, who has since retired, committed the defendant to the Townsville District Court for trial when sitting in Townsville. That occurred only because some confusion meant that a medical witness failed to turn up at the committal at Charters Towers. The proceeding had to be adjourned unfinished to another day in Townsville to suit the general convenience. There is nothing whatever to indicate that the Magistrate gave any thought to whether the committal ought to be to Townsville or to Charters Towers. In the ordinary course it should have been to the latter. -- 9 of 12 -- 18072006 T21/CAB M/T TSVDC2/2006 (Robin DCJ) 10 ORDER 1 10 20 30 40 50 60 Mr Middleton has said, and I accept, that it was through inattention or inadvertence on his part that he was not quickly on his feet to get the Magistrate to change the order. Mr Richards has indicated today that the Crown opposes any order or direction for a trial in Charters Towers. In fairness to the Crown it should be acknowledged that he has been ambushed to an extent today and not had material to place before the Court. I accept from him that the Crown's witnesses may be from Townsville or further afield, and that all Charters Towers has going for it is that it is the place of the accused's residence and the place where the alleged offence happened. On ordinary principles that would indicate that the trial ought to take place in Charters Towers, and I propose to order that. No doubt that is reviewable. There was a similar change after a good deal of attention, including at appellate level, had been devoted to venue in the prosecution of Long over the Childers' Backpackers Hostel arson trial. The cross-examination of the complainant in advance of the trial is another respect in which the defendant ought to succeed in his application. She was not cross-examined at the committal, nor it seems was she even available to be cross-examined. It does not appear that Mr Middleton originally asked for that opportunity. He explains that a record of rejection, when a -- 10 of 12 -- 18072006 T22/DLD M/T TSVDC2/2006 (Robin DCJ) 11 ORDER 1 10 20 30 40 50 60 Magistrate is asked to permit cross-examination of youthful complainants at committal, may have led him not to seek it on this occasion. It has emerged this afternoon that the complainant's evidence is about to be expanded in significant respects. It is not necessarily the total picture, but Mr Richards says that she will be asked at the trial to state her recollection of the defendant's answers in a pretext phone call, which was apparently made to him with a view to its being recorded by police. Mr Richards says, and it seems common ground, that her statements are clear on the relevant tape. The defendant is for the most part inaudible. It is unknown whether any process of enhancement will improve that situation. If the Crown case is to be expanded in this way, the defendant ought to have the ordinary protection against surprise at the trial and the ordinary opportunity to prepare properly and effectively for trial by knowing what the evidence will be and, indeed, having some opportunity to challenge it in advance. There ought to be a voir dire and in my opinion ideally that ought to be in advance of the trial. The Court hears that the complainant will be giving her evidence in the ordinary way. There will not be recourse to the pre-recording possibilities that are available to assist younger complainants in particular in giving their evidence. -- 11 of 12 -- 18072006 T22/DLD M/T TSVDC2/2006 (Robin DCJ) 12 ORDER 1 10 20 30 40 50 60 While in principle it might be open to the Court to require some supplementary committal proceeding in the Magistrates Court, given the retirement of Mr Brennan, that is not possible and I do not see any difficulty in that voir dire taking place in this Court in any event, which is what I envisage happening. Mr Richards supplied a helpful reference to R v Basha, New South Wales CCA, 16.2.89; BC8902533. ... HIS HONOUR: I adjourn the application to a date to be fixed, if the defendant wants to renew the application for a stay in the light of further information that might become available as foreshadowed. ----- -- 12 of 12 --