R v KOSITZIN

Consideration

It has taken some time to work my way through both the histories to be addressed and the bases upon which it is sought that I should address those issues. However, it is important that the significant matters raised by the parties be identified in the judgment. As I said earlier, the essence of the application by the accused is that a combination of factors combined to render the prospective trial of the accused unfair and it is submitted on behalf of the accused that there are no means for remedying the situation by direction or any other method. With this general submission I cannot agree.
At the heart of that general submission two particular matters dominate. Obviously, the current health of the accused and the extensive delay in bringing the prosecution forward, both in the disclosure of detail by the complainant to police and then the delay in the matters being brought to the attention of the accused to which I have referred. There are other matters, of course, to be seen in conjunction with these primary matters such as unavailable witnesses, lost evidence, inability to make relevant inquiry to challenge the claims of the complainant and other issues pertinent to the health of the accused that would affect his capacity to participate in the trial.
I have noted many of the particular matters raised by the applicant's counsel in his submissions which purportedly arise from the assessment of the accused by Dr Banks and by Associate Professor Crimmins. With regard to some of these issues examined individually, appreciating the global effect of the submission made by counsel for the accused, general issues relating to "forensic disadvantage" arising from relevant delays and bringing forward the allegations of the complainant in detail these are matters for comment at trial. Although, as I said, there was no delay as such in terms of general complaint by the complainant about sexual impropriety by the accused. This is a matter that, notwithstanding s 165B Evidence Act can appropriately be dealt with either by general or specific directions at the trial by the trial judge.
I accept, of course, that in the absence of particular detail concerning time of relevant events, people present and the like, the accused's position may be reduced to the character of a general denial, which is one of the matters raised on his behalf. However, the case would be an appropriate one, in my view, for the relevant direction to be given to the jury concerning the issue of forensic disadvantage on application of the accused's counsel notwithstanding the terms of the Evidence Act. It seems to me if such a direction was sought it could not be resisted either by the Crown or by the trial judge.
The particular disadvantages which are identified in the evidence and from submission are the very matters, in my view, that would be specifically identified as examples of relevant forensic disadvantage which would require the jury to very carefully scrutinise the evidence of the complainant in conjunction with other matters. The prosecution of historical allegations with sexual assault are not uncommon in this and other courts, but by operation of the Evidence Act, in conjunction with what remains of the common law directions, the superior courts have accepted that in the appropriate case warnings will be required to be given. The Bench Book currently available to judicial officers confirms that in very clear terms.
My personal experience, of course, not conclusive in determining this application, is that as recently as two weeks ago I presided over a trial in Wagga Wagga of a man alleged to have committed sexual assaults against the complainant when she was aged between the ages of five and eight years, the allegations being over 38 years old; in other words, a woman in her late 40s was endeavouring to remember events she said occurred when she was between the age of five and eight committed upon her by a neighbour. The accused was left in no other position than making a general denial. He did not give evidence in his trial. Yet he was acquitted.
I appreciate, of course, that each trial is different. However, that situation illustrates both the effectiveness of the appropriate warning and the respect with which it is given by juries. In any event, it is common ground within the law, following upon some observations are made, for example by McHugh J when he was a Judge of the High Court, that the operation of the law, particularly in the area of criminal trials, proceeds on the assumption that jurors will comply with their oaths or affirmations to return true verdicts in accordance in accordance with the evidence and follow the directions of the trial judge and obey the directions the trial judge gives.
There is ample authority for the proposition that the sequelae of delay in prosecution as arises in this matter, the death of witnesses, the difficulties in locating or inability to locate relevant witnesses, the loss of evidence and the like, are features of the problems that occur by delayed disclosure and they can be dealt with by direction which are either of themselves or in combination with other factors in the appropriate case matters which will not create exceptional circumstances in order that a permanent stay of proceedings be given.
The particular matters pointed to by the defence such as the inability to locate witnesses and records, the deaths of witnesses that are known about etc to my mind do not relate to matters at the heart of the truth of the allegations made by the complainant given the character of the allegations and the location and circumstances of the alleged offending. This observation includes the contents of the statement provided by the husband of the complainant. His statement gives some historical account of the complaints made to him by the complainant and also gives accounts of things that are said to have occurred in the presence of the accused and the presence of the complainant. These matters are not matters that go to the heart of the truth of the allegations. They are very of dependent upon the reliability of the complainant herself.
In that regard, I turn now to the health of the accused. His limitations physically and in his speech and other matters that are identified in the submissions of the applicant and in the evidence produced on his behalf are self-evident. In my view, however, as significant as they are, they are not so profound in the context of the analysis of them by, for example, Dr Banks so as to render any proposed trial materially unfair.
I bear in mind in relation to the matter that whilst I accept over time, of course, with ageing and the character of the conditions he suffers, there will be a worsening or deterioration in the condition, or there has been. For example, since the period of time when the offences were committed but the fundamental difficulties and disabilities to which reference has been made in the material has, as I have understood the evidence, largely been present for quite a number of years before the offences were committed. It has not been put. Nor is there evidence to support the proposition that the accused by reason of his physical impediments and purported cognitive limitations summarised in the submissions to which I have referred and contained within the material tender render him unfit to be tried.
Whilst the evidence of his solicitor and some of the submissions point to aspects of his clinical presentation, an analysis of the findings of relevant experts, that is, Dr Banks and Associate Professor Crimmins suggest those matters do not support a proposition that the disabilities of the accused are so profound as to prevent a fair trial. As was expressly acknowledged in the oral submissions and in the written submissions, the ultimate findings of Dr Banks sit somewhat at odds with some of the clinical observations that have been extracted and detailed, for example, by the accused's solicitor.
Dr Banks noted in his report, admittedly I accept, addressing the issue of fitness to be tried, that the accused "demonstrated an intact understanding of court and the allegations made against him". His orientation to person, time, space and purpose is intact, as is his awareness of the current events, including the then pending Commonwealth election. His autobiographical memory is sufficient for the purpose of being able to comment on actions that took place some years ago. As was noted with his awareness of past Prime Ministers, there is potentially a "confounding" element associated with his traumatic brain injury which he sustained in 1968. Provided he is given adequate support and time he is able to formulate a response to charges so that his lawyer can cross-examine the prosecution witness. The applicant is considered fit to give instructions to his solicitor but these instructions will be likely in the form of simple statements. The applicant was able to attend and focus in his interview for four and a half hours on 19 March 2015 and for a period of three hours on 25 March 2015.
During a trial (the applicant) may experience some difficulties recalling information presented in the course of the proceedings and may need occasional reminders throughout the trial when he may need additional time to process information presented to him. But none of these elements would be sufficient concern to render him unable to competently participate in the hearing in any substantive way. The burden may actually be on the listener who will need to exercise considerable patience to enable (the applicant) to find his voice and words.
I pause for a moment to point out that those very matters could quite easily be properly addressed by the trial judge in a manner that would cause absolutely no prejudice to the accused. One might have thought in the circumstances of the matter, even though the jury will be given a warning about sympathy and the like, such matters might excite some sympathy on the part of the jury.
In the context of the applicant's presentation to court, suitable arrangements can be made to ensure if required to give evidence, that the burden of giving evidence and the manner and the presentation of his evidence is undertaken in a way that will not cause him injustice. The matters raised by the prosecution concerning the complexity or lack of complexity of matters requiring instruction, in my view, are valid. There will be a filter that operates between the accused and his solicitor to assist in digesting information or communicating instructions.
The accused has had ample time before trial to give proper instructions. In fact there is no claim about it being impossible for him to give instructions. The accused has been able to swear an affidavit in relation to relevant matters. In any event, special arrangements can be made if needs be for him to either give instructions or to receive advice in the course of the trial.
Associate Professor Crimmins' reflections upon the accused's capacity to understand the gravity of the charge and understand the Court processes are reflected upon his awareness to the character of the charges. He identified significant speech disturbance and other significant matters of communication which are particularised in the submission.
He said in his report on 11 February 2015 that the: --"immediate recall, memory of events and ability to give a coherent history was grossly impaired by his language disturbance...the content (of what he said) was still appropriate in the context of what he was being asked...this was determined during a number of consultations I have had with him over the years, but especially during the most recent consultation. At that time I saw him for a period of 45 minutes. We discussed the Court case and its implications and, in my mind, there was no doubt he was clear of the implications of the Court case and his not guilty plea."
One of the reasons that it would be clear, one would have thought, is simply because of the lack of complexity of the character of the case brought against him so far as the allegations were concerned.
I appreciate in swearing an affidavit in this matter there would have been considerable difficulty for the applicant articulating the detail of the evidence, but the affidavit itself shows a coherent understanding of matters relevant to this application and the litigation. As I said, the various matters identified by way of physical or, perhaps, cognitive difficulty, although I perceive no significant cognitive difficulty on the part of the applicant, are all matters that can be managed by the trial judge or the legal representatives of the accused in consultation with the prosecution and the trial judge. The trial judge will have to be alerted to any special arrangements that are required, such as the seating of the accused, suitable breaks, explanations to the jury and the like, as well as appropriate warnings.
As it stands it could be argued by the prosecution given what I understand to be the accused's condition in 1982/83 that that condition, as I said earlier, was substantially as it is now. Allowing for some deterioration with time. The Crown would argue that even in those circumstances it is not inappropriate for the accused, if he on the Crown case committed the alleged offences, to seek to avoid facing trial in relation to the matter on the basis of essentially the same disabilities that he had, in fact, at the time of the commission of those offences. That is the Crown case.
On the other hand, as raised in submission to me and a matter specifically referred to by Associate Professor Crimmins, there appears to me to be a live issue as to whether the accused was, in fact, physically capable of doing some of the things that are alleged against him in the circumstances of the complainant being restrained in the manner in which he claims. These are all matters for a jury to determine with appropriate directions.
There are other matters to be identified and dealt with on this application. Although it was not a matter expanded upon by the defence in oral submission, it would appear that some of the matters specifically addressed in the defence written submissions, as I have said earlier and as the Crown has contended, have been addressed somewhat belatedly by additional material produced by the Crown. I refer to the statement of Sergeant Banfield. That bundle of material I have been provided does include a number of additional statements which, apparently, have been obtained in late April or May of this year, including, as I said, the additional statement from the complainant.
I deal with the issue of delay from early 2010 when the complainant's statement was finalised to October 2013. Detective Lombardo attempts to address that in his most recent statement. I regret to say I find his explanations are weak, in some respects non-existent, concerning the issue of unforgivable delay. A number of complaints are made about the matter in terms of objective comment are accurate and the Crown hardly shies away from it when one analyses the submissions. I appreciate the delay in the investigation in this matter is not necessarily an indictment of Sergeant Lombardo. He gives explanations of being torn away from this investigation to undertake other work of the New South Wales Police Force, that I can understand.
However, it seems to me that whatever he has done or not done, there stands to be proper criticism to be made of the policies of the New South Wales Police Force in cases of this type. This is one of many cases of its type where many, many months, sometimes years, pass after a complainant has raised historical allegations of sexual assault in a generally coherent narrative account, before any proper investigation is undertaken. Usually the first phase of the investigation, although not in every case I hasten to say, is a perfunctory investigation before the allegations are put to or brought to the attention of the alleged perpetrator. The pattern in all those matters is the same as it is here.
Whatever the suspect says or does not say when spoken to by police, he or she is usually immediately charged or else served with court attendance notices without much, or any further ado. Later on, of course, after he has been charged there is a realisation by someone that there are various issues needed to be addressed, either because of the initial statement of the complainant itself, because of subsequent statements by her or other witnesses, because of matters raised by an accused in an interview or because of matters raised by the defence legal representatives in the preparation of the case.
Then there is a flurry of investigation into matters before the trial or some pre-trial litigation. We often see in these cases matters involving complaints that are years old, statements still being prepared in the week before or the week of the start of a particular trial. These further investigations can be contaminated by further delay or the earlier conduct of the investigations. Only a fool would think, in circumstances where witnesses should not discuss matters amongst themselves, that if a complainant has made a statement three or four years before then, just before the trial a close family member is called upon to make a statement to assist to confirm an aspect of her or his account, there is no risk of contamination between those two potential witnesses. In any event, eventually statements are obtained and inquiries which are made which really should have been obtained before the accused was charged or even before a decision was made to interview him.
It is to be borne in mind that when an accused person is interviewed in relation to matters of historical sexual assault generally in that interview process they are expected to respond to general allegations put to them without any meaningful opportunity of reflecting upon what is alleged with usually very few particulars about place and time. Usually in circumstances where the questioner has had the relevant statement in his or her possession for months, sometimes years before. In historical sexual assault matters the accused when interviewed is called upon to respond in detail to matters that are many, many years old where nobody, save for someone of particular mental acuity, would be capable of remembering with precision the details that relate to the contextual issue of those allegations.
The case in Wagga Wagga was a case in point. One of the issues that arose in that case was whether the accused was actually a neighbour of the complainant or whether he moved into the house after the complainant had moved address. The case I am referring to involving the 38 year old allegations had evidence that at one point that the victim or the alleged victim's neighbours were the parents in-law of the accused. It was suggested as part of the Crown case that the accused had lived in the house with his parents in-law. There was evidence in the case to show that, in fact, after the victim and her family moved out of the house, the parents in-law moved into their house and then the accused and his wife and his children moved into the house next door of the parents-in-law although they had been regular attendees at the next-door premises when the victim had lived in the subject premises.
That is all well and good, but the point of the matter was that when the interview was conducted with the accused and he was asked by the police to remember where he lived in Wagga during the 1960s and the early 70s, he not only reflected some uncertainty but he named some places where he had lived, but did not name other places that documentation from the Land Titles Office established that he had lived. He did not remember living in two addresses where there were records of the Land Titles Office to demonstrate that he lived at particular times. This shows the difficulty for a person in that situation to be able to remember details which turn out to be entirely accurate. In these circumstances, of course, it is small wonder that many such accused are acquitted in circumstances where, if proper investigations have been undertaken, either the accused would never have been charged or, alternatively, the Crown might have had a stronger case than the one that is ultimately produced at trial.
In this matter it seems to me the only material evidence now compromised or unavailable is the potential evidence of the complainant's late husband and the particular representations alleged to have been made by her and also alleged representations of the accused in her presence and his presence. The other matter of unavailable evidence and the like reflects upon witnesses which, who I said earlier, were not only not germane to the truth of the allegations, but about which in most instances no guarantee could be had as to what they would have said even if they were available.
In relation to the issue of the missing husband, the admissibility of that statement or the contents of that statement will need to be considered having regard to s 65 and 67 Evidence Act, perhaps also by consideration of s 137 of the Act, assuming the Crown would wish to tender the document given the warnings that inevitably would be required about it, if sought by counsel for the accused. Pursuant, for example, to s 165 Evidence Act or for other reasons. As it transpired, it seems to me that the delay between 2010 and 2013 would have made no difference to the availability of that witness given his death shortly after 2012.
Ultimately, the delay in the investigation of the matter is not a material matter in this case save for the fact that it has added already to the existing substantial delay from 1983 until 2010 before substantial and detailed disclosure by the complainant in her first statement. I have taken that matter into account, but I particularly take it into account the matters of detail that have been discussed in cases such as Littler and RWO to which I have referred. Ultimately, with regard to those matters and the health of the accused, this case is a very different case than Littler. Bell J in RWO specifically identified matters, as the Crown submitted, reflecting upon those differences at [89] of that judgment.
Another matter initially raised by the accused was the absence of the statement from Sergeant Banfield. The written submissions of the applicant obviously predate the production of the further material to which I have referred. The statement of Mr Banfield apparently made on 25 May 2015, offers little consolation to anybody. He has very little recollection, if any, of relevant events and probably will not be of much assistance to cast further light upon the occurrence pad entry.
However, the occurrence pad entry is available to be considered in its terms and may be of material assistance to both the prosecution and the defence. It provides evidence of a complaint in general terms about the accused's conduct, but it also contains relevant hearsay evidence that may be admissible under the Evidence Act of retraction by the complainant, matters relating to the questionable veracity of the complaint in the eyes of the maker of the occurrence pad entry, the accused's denial and other matters.
As often happens these matters are common in such cases. If the occurrence pad entry is admissible pursuant to any relevant provision of the Evidence Act, or inadmissible as the case may be, this is a matter for the Court in due course to determine. It seems to me with respect to Sergeant Banfield's lack of recollection of events by reference to the terms of the occurrence pad, that is a matter of no great moment and can be dealt with again by appropriate direction and warnings. Or, if needs be, by appropriate examination and/or cross-examination of the author of the occurrence pad entry who will be available to give evidence notwithstanding his current lack of memory.
The claims of the absence of any specific school records is again a matter that can be dealt with by appropriate direction. One would have thought, however, given the statement of KK, and she is available to be cross-examined, that her recollection of relevant events and her recollection of representations made by the complainant may point to the fact that the absence of school records may well be a very good thing for the accused, not necessarily a bad thing.
In this respect the statement of Ms K in the context of the complainant's allegations and her alleged complaints appears to be a statement of pertinence that appears to be largely unblemished by delay. Subject to the testing of the accuracy of her recollection, which is a matter that may work to the accused's advantage, assuming that the evidence is admissible for hearsay purposes pursuant to s 66 Evidence Act 1995 or admissible for non-hearsay purposes. In any event, it is of the character of evidence that has to be examined by a jury on the basis that the person who makes the relevant representations is the very person upon whom the prosecution must rely to prove the guilt of the accused.
I have also taken into account the complaint about the absence of records of Akuna Bay and related matters, identification of people moored nearby and staff and the like. This is clearly a matter within the ambit of what was contemplated in the dicta of Gleeson CJ in the decision of McCarthy and again is a matter for which the accused should expect an appropriate warning given to the jury in his favour.
The absence of at least one of the children of the ' foster parents' by reason of a death in 2007, or thereabouts, is not a critical matter in this case, even allowing for anything that the complainant says, noting the recollection of the foster parents and the circumstances in which the complainant came to their family. There is no guarantee that GH, the foster sister, would have been able to provide any specific assistance to any party on any reasonable basis or could have even given admissible evidence of relevant representations made by the complainant to her even if they were made and even if she were alive.
There is a live issue as to whether any representations made to her were relevantly "fresh in the memory". Although she falls within the category of missing witnesses because of the general delay in the timely disclosure of specific allegations, her unavailability is a matter that can again be dealt with by appropriate direction, as I have already indicated, and to my mind ultimately is not a matter contaminated by any unsatisfactory delay in bringing forward the allegations or delay in the subsequent investigation.
The issues identified by the applicant such as the absence of corroboration and the significance of the listening device conversation are matters not of any significance, even allowing for extensive delay through no fault of the accused. The absence of supporting or corroborative evidence of the complainant, apart from being a common feature of such cases whether there be recent complaint or delayed complaint, is a matter upon which appropriate comment can be made and direction given if needs be by the trial judge.
I note, of course, that in the intervening time since 1987 or shortly thereafter up until the present time, trial judges have been permitted to make what is called the 'Murray' direction. There is recent authority of the Court of Criminal Appeal stating that the operation of the current legislation restricts such a direction in cases of sexual assault relying upon one witness. That may be so. There are some discussions, of course, amongst judges and lawyers before judges as to aspects of that recent judgment. But even if a warning about examining the witness's evidence with great care because she gives the only evidence against the cannot be given, this is still a case where the jury would need to be told by the Crown, amongst other people, that the Crown case was entirely dependent upon the truthfulness of the complainant.
As I said in relation to the listening device recording it is an equivocal recording. To my mind it actually works to the accused's advantage in its terms. Whether it is played or not is not a matter that is particularly pertinent. In fact, it is of no moment, in my view, in determining this application.
Arising out of the complainant's earlier statement are issues taken up by the applicant concerning her private behaviour, treatment she has received, counselling and the like. These matters are to be considered along with the admission made by the complainant about a use of prohibited drug and are matters that may reflect in due course adversely upon a credibility. They are quintessentially matters to be considered by a jury in determining whether the jury is satisfied beyond reasonable doubt of the truth of the complainant's evidence.
So far as the solicitor's inquiries to locate the relevant counsellors, the particular psychiatrists and the like identified by the complainant, if it transpires that no such people existed or were not legitimate counsellors or medical practitioners, obviously, these are matters to be taken up with the complainant as relevant to the assessment of her credibility. If it be suggested that the complainant's recollection of events has been infected by her contact with a clairvoyant or a medium, from the use of drugs or other third party interventions, or from some suggestion of recovered memory, this is a matter that can initially, if need be, be examined in the form of a Basha inquiry or directly taken up by the complainant in the presence of the jury as relevant to the assessment of her truthfulness.
The complainant has produced a further statement in relation to the matter which, to my mind, may provide further "grist for the mill" for the accused notwithstanding the explanation she has given. It seems, with respect to the investigation, that the obtaining of such a statement five years after the original statement in circumstances where one might have thought that proper investigation should have been undertaken in 2010 to identify some of the people to which the complainant referred in her earlier statement, is a matter that reflects adversely upon that investigation.
Once again, these are all matters for comment and fit within the rubric of issues that can legitimately be raised in the conduct of the trial or be matters the subject of proper direction to the advantage of the accused. As to the issue of whether the complainant has "reconstructed memory", the concerns of the solicitor are matters, as I say, that can be addressed with the complainant irrespective of whether there has been delay, irrespective of the explanations given by the complainant. It seems that if a jury believed that it was reasonably possible that the relevant events had been reconstructed in the mind of the complainant, this would raise a basis for the jury to have a reasonable doubt about the truthfulness of the complainant and/or the reliability of her evidence. Again, these are all classic issues for a jury to determine in the context of consideration of the legal directions that are to be given.

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Cases Cited (12)