The Judge's Reasons
22 The judge considered many of the relevant cases. He concluded that the absence of Mrs Nelson in the trial was not a feature which had the character of being a fundamental defect going to the root of the trial such as to demand a stay of proceedings.
23 The judge envisaged that the trial judge would give the usual direction that by reason of absence of complaint until some 10 years after the alleged offences, the appellant had been placed at a significant disadvantage in the conduct of his defence and that the jury should give close attention to that fact. Some of the directions needed have been spelt out in the judgment of Studdert J of 29 August 1997. In the light of the present situation the directions will need to go further. The jury should also be told that because of the delay in complaint the appellant has been prejudiced in the conduct of his defence by not being able to call Mrs Nelson to give evidence on his behalf to the effect that the allegations were lies. The direction will have to be fashioned in the light of the evidence given at the new trial.
24 In conclusion the judge said:
"What I have said should not be taken to indicate that I believe those directions which the trial judge can give in this case would provide any remedy for the prejudice. At best it would only provide a slight correction of the prejudice suffered by the accused by not having Mrs Nelson available to give evidence.
The view I have come to is that on the basis that Mrs Nelson cannot give evidence with all the disadvantages and prejudice to the defence that flows from her inability to give evidence, nonetheless that is not a circumstance, in my view, that should go to the exercise of the discretion to grant a stay."
25 The appellant submitted that on these findings the judge was bound to grant a permanent stay as he was, in effect, holding that if the trial proceeded the appellant would suffer incurable prejudice and that he could not have a fair trial. Further, the appellant contended that the judge erred in holding that the inability of Mrs Nelson to give evidence did not go to the exercise of the discretion to grant a stay.
26 Read as a whole the judge in his reasons appears to be of the view that the appellant will suffer prejudice from not being able to call Mrs Nelson and that that will only be slightly alleviated by the directions which can be given and the concessions made by the Crown in agreeing to allow hearsay evidence to be given but that her absence was not sufficient in the circumstances to grant a stay.
27 Counsel for the appellant concentrated upon various passages in the judgments of the High Court in Jago v. The District Court of New South Wales and Others (1989) 168 CLR 23. At 33 Mason CJ said:
"The test of fairness which must be applied involves a balancing process for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial … At the same time, it should not be overlooked that the community expects trials to be fair…"
28 The appellant placed reliance upon this passage at 34 where Mason CJ continued:
"To justify a permanent stay of criminal proceedings there must be 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 per Wilson J (1980) 147 CLR at 111."
29 The appellant contended that the absence or unavailability of an important witness could constitute a fundamental defect and did so in the present case where there was no other witness who could fully support the appellant. Her evidence went to the non-commission of the offences. Counsel described Mrs Nelson as a crucial and fundamental witness. I would be prepared to accept that she could have been an important witness but I would not further elevate her position. The view now propounded on behalf of the appellant as to Mrs Nelson was not taken at the first trial. The ultimate importance of Mrs Nelson may well have depended upon how she fared in cross examination including the extent and reliability of her recollection and observations. Close family members are not always the most compelling witnesses especially when the allegations of the complainants involve the consequence that she was not looking after them adequately.
30 The appellant also relied on the remarks of Deane J at 57 as to the necessity for a fair trial and his examples of what might cause a trial to become unfair. He did not refer to the present type of case. Reliance was placed on the observations of Toohey J at 71-72.
31 Counsel submitted that Toohey J envisaged that while it would often be possible to cure any prejudice to an accused by evidentiary rulings and by directions to the jury this would not always be so and that there could be cases where, having regard to the defect or defects, directions could not ensure a fair trial. Counsel further submitted that this was such a case.
32 The appellant also relied on this passage from the judgment of Gaudron J at 77-78:
"The exercise of the power to reject evidence, either alone or in combination with a trial judge's other powers to control criminal proceedings, will often suffice to remedy any feature of the proceedings which might otherwise render them unjust or unfair. The existence and availability of these powers, when considered in the light of the necessarily limited scope of the power to grant a permanent stay, serve to indicate that a court should have regard to the existence of all its various powers, and should only grant a permanent stay if satisfied that no other means is available to remedy that feature which, if unremedied, would render the proceedings so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay.
33 The appellant contended that there was no means other than by granting a permanent stay to remedy the actual prejudice suffered by him in not being able to call Mrs Nelson as a witness. Reliance was placed on the views expressed by the trial judge.
34 The appellant has lost the opportunity to call Mrs Nelson. There has been no detailed statement from her. It is not known how compelling her evidence would have been and how well she would have fared in cross examination. The unavailability of Mrs Nelson will not render the proceedings seriously defective. The jury can be told of her state of health and they will have the advantage of the conversation she had with her daughter providing general support for the appellant. The jury can also be directed that the absence of her evidence has made the conduct of the appellant's case more difficult and put him at a distinct advantage in defending himself with the delay in complaint by the complainants contributing to the situations. The directions could and should be put in cogent terms. As with the first trial much will depend on the view which the jury takes of the appellant's evidence, if he gives evidence.
35 In Jago at 47 Brennan J said:
"Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes ( Murphy v The Queen ), adverse revelations in a public enquiry ( Victoria v Australian Building Construction Employee's and Builders Labourers' Federation) , absence of competent representation ( McInnis v The Queen ; MacPherson v The Queen) , or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness. 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."
36 That passage seems apt to the circumstances of the present case.
37 In R v McCarthy, CCA, unreported, 12 August 1994 at p. 12 Gleeson CJ (with whom Carruthers and Hunter JJ agreed) said:
"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. If the result of that were that nobody could obtain a fair trial, and the proceedings had to be permanently stayed, it would go a long way towards solving the problems of delay in the criminal lists in this State. However, the position is that it 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."
38 In R v. Goldburg, CCA, unreported, 23 February 1993 at 5 Mahoney JA (with whom Gleeson CJ and Abadee J concurred) thought that there may be circumstances where the absence of a witness may, because of the peculiar nature of the circumstances, provide the basis for a stay. I agree but that is not this case. Mahoney JA's provisional view was "The mere fact that a witness who would otherwise have been available has died or otherwise become unavailable does not as such warrant the granting of a stay of proceedings." That is the general rule but is subject to the exception which he mentioned. In Goldburg it was held that the unavailability of an important alibi witness due to her medical condition did not warrant the grant of a stay.
39 This is not a case where because of the peculiar nature of the circumstances the absence of Mrs Nelson provides the basis for a stay. A good example of such a case is Davis (1995) 81 ALR 156. The alleged offences occurred many years previously. As a medical practitioner Davis had seen thousands of patients and his clinical records had been destroyed in circumstances where no blame had been levelled at anyone. Without such records he would not be able to say what he did and why and to give instructions to his counsel.
40 The appellant has the advantage of his own evidence, the benefit of Mrs Kenny's summary of what Mrs Nelson said and directions to the effect earlier mentioned and perhaps others designed to counteract any prejudice which he may suffer in not being able to call Mrs Nelson. These are not insignificant. On balance, a permanent stay should not be granted. The judge reached the right conclusion. It is not necessary to embrace the whole of his reasons and I have not done so.
41 As is so often the case on applications for a permanent stay this Court has materials which were not before the primary judge. This court had the benefit of knowledge of the course of the earlier trial and the Court's judgment of 29 August 1997 and thus a fuller picture than that before the judge.
42 In Goldburg at p. 5 it was noted that this Court was given a discretion under s 5F(5) of the Criminal Appeal Act 1912 to deal with the interlocutory judgment or order made in the District Court. Under that sub-section this court may affirm or vacate the order appealed against or it may make an interlocutory judgment or order instead of the judgment or order appealed against.
43 Both on the materials before the judge and the materials before this Court, a stay should not be granted. Thus the appeal was dismissed.