R v Kenny

1 FOSTER AJA: I agree with Smart AJ. 2 DUNFORD J: I agree with Smart AJ. 3 SMART AJ: Upon the conclusion of argument on 5 May 2000 this Court dismissed Mr Kenny's appeal with reasons to be given later. 4 Nils John Edward Kenny appeals, with the certificate of the primary judge, against his decision refusing to grant a permanent stay of proceedings in respect of the prosecution of four serious sexual offences allegedly committed by Mr Kenny against C when a child aged nine and ten and a further four serious sexual offences allegedly committed by Mr Kenny against W, when a child. W is the brother of C and about two years older. It is alleged that the offences took place in 1985 and 1986 while the boys were being looked after by a baby-sitter, Mrs Nelson, the appellant's grandmother. Some of the offences are alleged to have occurred in the home of the parents of C and W and some in the grandmother's home. The appellant lived with his grandmother and mother. Their home was close to that of W and C. 5 It was the unavailability of Mrs Nelson to give evidence on behalf of the appellant that gave rise to the application for a stay. She is now an elderly lady who by reason of her physical and mental condition could not give evidence. 6 Neither W nor C made any complaint in 1985 or 1986. In May 1995 the boys' father went to the police. In June 1995 statements were obtained from each boy by Sergeant Devine. In July 1995 he attended on Mrs Nelson but she declined to be interviewed or make a statement. Mrs Nelson was by this time an elderly lady and her daughter, Mrs Kenny, was overseas. The latter, on returning to Sydney in August 1995, became aware that the police were investigating allegations concerning her son, the appellant. She spoke with her mother (Mrs Nelson) and obtained a sketchy account of the police visit and the allegations which had been made, an assertion by her mother that the allegations were lies and a brief summary from her of the appellant's activities and conduct whilst baby-sitting. On 20 September 1995 the appellant attended upon Detective Sergeant Devine and denied the allegations made about him. 7 Later in 1995 the appellant was charged with the subject offences. His first trial was in August 1996 but that was aborted when the jury was discharged for reasons not disclosed in the papers. At his second trial in February 1997 the appellant was convicted. On 29 August 1997 this Court quashed the convictions and ordered a new trial. The summing up gave the jury no instruction as to delay and its possible bearing upon the credibility and reliability of the evidence given by the two boys. Nor did the summing up contain any directions as to the significance of prejudice to the appellant in meeting the complaints by reason of the delay. 8 On 14 July 1998 Judge Downs refused an application for a permanent stay and alternatively for separate trials. On 10 December 1998 this Court held that Judge Downs had proceeded incorrectly and misdirected himself. The application was remitted to the District Court for further consideration. 9 On 22 September 1999 Wall ADCJ refused the stay. In a separate judgment he ordered that there be separate trials. There has been no appeal by the Crown against that order. 10 The judgment of Studdert J of 29 August 1997 in this Court contains a helpful summary of the course of the trial in February 1997 and the evidence given. The prosecution depended substantially on the evidence of W and C. There was some material capable of affording support for their evidence but it was not of a weighty kind. For example, both parents of W and C recalled occasions when they saw the appellant at their home in 1986 after they had returned from being out. 11 During his judgment Studdert J summarised the evidence of the appellant thus: "The appellant gave sworn evidence denying the commission of the offences. He said that there were only two occasions when he went to the complainants' house whilst his grandmother was babysitting and those occasions were in 1984. Once he went there to take a television guide to his grandmother and the other occasion was to take a cardigan to her. On the first occasion he did not see either complainant; on the second occasion he saw one of them only, but on that occasion he was only in the house for two minutes. According to the appellant his grandmother did not babysit the complainants after she returned from an overseas trip in August 1985. The appellant's evidence was that he was actively involved in the Young Liberal movement and on most Saturday nights in 1986 he was attending functions for that organisation. A number of witnesses were called who gave evidence about the appellant's involvement with the Young Liberals and the functions he attended in 1986. There was evidence of the appellant's good character." 12 The Judge said: "Moreover, it is evidence that the appellant was able to gather together a considerable body of evidence to address the Crown case. The appellant had available to him his diaries from 1984 onwards. He was also in possession of his passport and airline tickets to establish the absence of his grandmother and himself overseas on a visit to the United States in 1985 and he had some other evidence directed to proving that his grandmother did not babysit the complainants after that trip. The appellant had documentary evidence to establish another trip he took overseas in December 1985-January 1986. He identified at the trial his air ticket and boarding pass for a flight to Brisbane and Cairns in June 1986. The appellant was able to call witnesses who proved his involvement in the activities of the Young Liberal Party on Saturday evenings in 1986 and he was able to call evidence directed at establishing he was elsewhere on 15 February 1986, which was a date upon which on the Crown case one of the offences was committed." 13 There was also evidence from a Mrs Austin who said that Mrs Nelson babysat full time for her between September 1985 and 1992 during which time the surname of the boys (the complainants) was not mentioned. However, Mrs Nelson attended to the Austin children full time during the week but on Saturday nights only if Mrs Austin went out. Further, the appellant relied on his good character. 14 Studdert J commented: "The evidence placed before the jury in the defence case directed to proving the appellant's movements on Saturday nights by no means excluded opportunity for the appellant to have attended the home of the complainants' parents during 1986. The jury had the appellant's diary which did not contain entries for every Saturday and this diary, the appellant conceded in cross-examination, recorded entries of appointments which the appellant did not necessarily keep. Evidence of other members of the Young Liberal movement that the appellant regularly attended functions in 1986 was not so comprehensive as to establish, if it was accepted, that the appellant had no opportunity in 1986 to attend the home of the complainants on a number of Saturday nights." 15 When this Court enquired of senior counsel for the appellant whether it was proposed to rely on the evidence called on his behalf at the second trial and summarised by Studdert J it was told that the appellant did not propose to do so as it had been rejected by the jury. A more general and less detailed case would be conducted on behalf of the appellant. The appellant was also concerned that his evidence had been rejected by the jury. Nevertheless, the appellant may still give evidence. That was undecided. The appellant now wished to attach importance to the evidence which Mrs Nelson could have given. Such a change of direction and emphasis enabled this present application for a stay to be made. It is apparent that Wall ADCJ did not have the judgments of this Court of 29 August 1997 and was not informed of the appellant's change of direction and of emphasis. Neither before the first trial or the second trial was any application made for a permanent stay. Nor was any attempt made to adduce in evidence what the grandmother had said. 16 Wall ADCJ accepted that Mrs Nelson by reason of her situation would be an important witness in relation to giving an account of what occurred in relation to the care of the boys and the opportunity or lack of it which the appellant had to commit the offences charged. The judge recorded that the Crown case was that Mrs Nelson was not aware of what was taking place in a room between the appellant and either or both of the boys. The two boys contend that she was never present in the room when the sexual offences occurred. 17 The evidence given by Mrs Kenny on the voir dire before Judge Downs was before Wall ADCJ. It included: "Q. Did she [Mrs Nelson] say to you anything about where it was that these alleged matters had occurred? A. Yes, she did. She said it was supposed to have happened at the [surname of W and C] house when she was baby-sitting." 18 Apparently, Mrs Nelson did not mention to her daughter that the allegations also included occasions on which she minded W and C in her own home. Mrs Kenny asserted that Mrs Nelson stated that the offences were supposed to have happened in 1984 and that the appellant only called in about twice. According to Mrs Kenny, Mrs Nelson said: "I can remember him calling in to give me a TV guide and there was another time when I telephoned and asked to bring my cardigan up on his way out." 19 Mrs Kenny asserted that her mother said that the allegations were all lies. The evidence given by Mrs Kenny as to her mother's statements indicate that they were general in their terms. Not much detail was given or obtained. 20 The Crown has stated that it will not object to Mrs Kenny giving evidence of what Mrs Nelson said to her. The value of such evidence will be reduced by the warning as to its reliability which will probably be given. Even without such a warning the evidence of Mrs Kenny will not have the value that direct evidence from Mrs Nelson would have. It should not be overlooked that had Mrs Nelson been able to give evidence she would have been cross-examined as to the number of times the appellant was present while W and C were being minded, what he did and the accuracy of her recollection. The two visits allegedly mentioned by Mrs Nelson were probably to the parents' home. There were occasions when she looked after W and C in her home. The eighth count related to an incident in the appellant's bedroom. The material displayed in that room included pictures of naked and scantily dressed women. That was likely to make the occasion memorable for the boys. There was also the question of where in the homes of the parents and herself the children were and where she was. She would not have been anticipating conduct by the appellant of the kind alleged. 21 With the evidence of W and C and the supporting evidence of their parents the appellant faces a Crown case of some strength.

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.

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