R v Pike [2000] NSWCCA 347 | Case summary

(b) the third count charging him with assault with intent to carnally know his daughter on or about 18 October 1979 at the age of twelve years. 3 The applicant and his wife married in 1965 and separated in November 1979. They had three children, of whom the complainant was the eldest. The complainant was born on 6 April 1967. 4 The complainant's account of what is claimed to have occurred is contained in her statement to police dated 5 September 1997. According to the complainant, the applicant kissed her inappropriately on two occasions and there were other numerous occasions when he touched her on the vagina and required her to touch him on the penis. There were other alleged episodes of sexual impropriety. However the indictment refers to three offences described by the complainant and which can be shortly summarised. 5 The first and second counts relate to an allegation that the applicant tried to have sexual intercourse with his daughter when he was driving her home from band practice. According to the complainant, the applicant drove into a country lane, told his daughter to lie on the seat in the vehicle and then he attempted to penetrate her vagina with his penis. When this proved unsuccessful, the applicant employed the aid of vaseline before making a second attempt, which was equally unsuccessful. 6 So far as the third of the alleged offences is concerned, the complainant states that she was asleep in her bedroom at the family home one night when awakened by the applicant saying "Move over, I'm going to rape you." According to the complainant, the applicant tried to push her over in her bed and she could remember that he was naked because she was pushing against his body trying to make him stop. The applicant's intrusion was interrupted by the hall light coming on and the appearance of his wife. The applicant ran naked from the room. 7 I observe that in a statement which the complainant's mother gave to police on 13 September 1997 the complainant's mother gave the police an account of the events which at face value affords significant support for the complainant's account in relation to count 3. 8 When police first sought to interview the applicant in March 1998 about the complainant's accusations, the applicant declined to be interviewed. He was subsequently committed for trial on 28 January 1999 and when Judge Freeman entertained the application for the stay of proceedings, the applicant was facing the prospect of a trial concerning events that had occurred over twenty years ago. 9 On the application before the District Court, the statements of the various Crown witnesses and the transcript of proceedings on committal were placed before the learned judge. The transcript of proceedings in the District Court records the submissions entertained by his Honour and the statement of reasons for refusing the stay application, which I now record: "I don't think this is a case for a ground of a permanent stay. That's a protection to be used only in the most rarest and exceptional of circumstances when there is no other way to guard an accused against a physically unfair trial. In this case, it is of course regrettable, although understandable given the age of the complainant, that proceedings were not launched back in 1979. It's certainly regrettable that records have been lost or destroyed but those factors by themselves do not predicate a necessarily or indeed probably unfair trial. The age of the complaint is no more than is usual in cases or at least not uncommon in cases of this nature. This is a situation which a grave crime is alleged against the accused. There is clearly a strong community interest in seeing a trial at least of somebody against whom there is evidence concerning the commission of such a grave crime. It seems to me that whilst I dare say in cases there have been stays granted in order to, as it were, punish the prosecuting authority for its dilatory approach, there is no real suggestion that there is anything inappropriate. It is simply a function of the age and level and maturity of the complainant at the time. To speculate about what advantage or indeed disadvantage the accused may have encountered were these records still found is to enter the realm of impermissible guesswork. So, the application for a stay is refused." 10 The principles to be applied on an application for a permanent stay are well settled: see Jago v The District Court (1989) 168 CLR 23, The Queen v Glennon (1992) 173 CLR 593, and Walton v Gardiner 177 CLR 378. The power to order a stay is to be employed "as an incident of the general power of a court of justice to ensure fairness": see the judgment of Mason CJ in Jago at 31; and it is a power to be used "only in an extreme case": again, see the judgment of Mason CJ in Jago at 34, and the judgment of Mason CJ and Toohey J in Glennon at 605. 11 Three grounds of appeal have been expressed: "First Ground: The learned trial judge's discretion miscarried in finding that the reason that the applicant was not charged in 1979-80 was because of the complainant's age. Second Ground: Alternatively, if the learned trial judge had a sufficient evidentiary basis to find that the reason that the applicant was not charged in 1979-80 was because of the complainant's age, the fact that the applicant was not charged, either then or within the few years following her complaint to police, constitutes conduct on the part of the police which necessitates that a trial following charges being laid eighteen years after the complaint be permanently stayed. Third Ground: The applicant is prejudiced in mounting his defence by the lapse of time, death of a potential witness, loss of memory of surviving witnesses and the loss of records." 12 It seems to me that the Crown is correct in the submission made that Judge Freeman did not specifically find that the applicant was not charged in 1979-1980 because of the complainant's age. The remarks of the judge above recorded speak for themselves. His Honour did refer to the complainant's age and noted with regret that the applicant had not been charged in 1979, but indicated that it was understandable having regard to the age of the complainant. The judge did not find that the complainant or her mother wanted any charges to be laid or any further investigation to be undertaken in 1979. The second of the expressed grounds was based upon the assumption of the same finding as that complained of in the first ground. It also assumes that the police failed to charge the applicant at a time when he ought to have been charged. It seems to me that the conclusion that the police should have charged the applicant in late 1979 or early 1980 is not supported by the evidence that the District Court judge had before him. 13 What the evidence did disclose is that there were two police officers who attended the applicant's home and told him to leave. This they did, having been summoned to the property in November 1979, at a time when, according to the applicant's wife, the applicant had threatened to kill both the complainant and her mother and when it had been reported to the police that the applicant had been seen on the verandah of the property holding a gun in his hands. There was evidence before the District Court that the police told him to leave and said "Think yourself lucky you are not going to go and do a ten year stretch in gaol." However the circumstances in which that remark was attributed to them do not warrant or support the inference that what those two police officers had in mind was that they had considered charging him with sexual offences against his daughter but had decided not to do so. The complainant's mother described the circumstances of the applicant's departure from the family home in paras 7-9 of her statement dated 15 September 1997: "7. On Wednesday night the 14th November 1979, I asked Reginald to leave our family home. This date was actually six weeks after I caught him in Elizas bedroom. By the following Monday, I had been into town to see the Solicitor Pat Okane. I returned home to the farm after picking up milk from Coles. 8. As I was coming up to pull into the shed at the property, I saw Reg walk out onto the veranda holding a gun in his hands. I did not get out the car but did a U turn straight away and drove back into town to see the Solicitor Mr Okane. I reported this incident with Mr Okane, who reported the matter to the local Police. The actual Police that eventually came out to our place were Senior Constable Fernleigh and Constable McCabe. I have no idea where these police are these days. 9. The Police organised for me to pick the kids up from school then I went and picked up Grandma then we waited at the top of Cattles Laneway where the Police told us to wait until they returned. Later I think it was Col who came and told us that it was safe to return to the house. We returned to the house and I saw that the Police were already there. After the Police spoke with Reg he got into his vehicle and left." 14 The evidence as to what information had been given to the police about the subject matter of the proposed indictment at about the time the last of the offences occurred is by no means clear. 15 The complainant recalled that details were obtained from her on the police computer and that she signed something at the police station. On the other hand, her mother had no recollection that the complainant had gone to the police station and/or that she had signed any document there. For her part, the complainant did not understand that what she recalled being recorded was recorded for the purpose of police action. According to her, there was no decision that any action should be taken at that time. 16 The complainant's mother, on the other hand, gave evidence at the committal proceedings, in the context of describing the involvement of the police in the removal of the applicant from the home, that she provided details to the police as to what the applicant was alleged to have done to the complainant by way of sexual misconduct. 17 It seems to me that the submission put forward by the Crown that it is not possible to conclude that there was a formal complaint of criminal conduct made for the purpose of then having the police investigate such conduct and prosecute in respect of it is correct. The material placed before the District Court would not compel the conclusion that there was, at the end of 1979, any duty resting upon the police to proceed against the applicant then upon charges of the type now pending. 18 However, whether this be so or not, it is submitted that the police were then aware of the complainant's allegations and that the failure to prosecute then or within a few years produces the result that to prosecute now would amount to an abuse of court process. It was submitted that the circumstance that the police were on notice of what the complainant alleged as long ago as 1979 but took no action until the complainant came forward in 1997 distinguished this case from other cases where lengthy delay has not resulted in a stay of proceedings. Mr Ierace submitted that the concept of an abuse of process is not to be confined to rigid categories and he referred to authority to support this proposition. In particular the Court was referred to the judgment of Simpson J in R v Peters (1995) 83 A Crim R 142 at pp 145-146 where her Honour reviewed authorities in point. Mr Ierace submitted that the concept of abuse of process is broad enough to cover what occurred here, involving police inaction against the applicant for such a long period notwithstanding knowledge of the offences, and eventual action brought about only by the complainant's decision to pursue the matter in 1997. 19 Accepting in the applicant's favour for the purposes of this submission that the police were aware of the substance of the complainant's present complaints as long ago as the end of 1979, this was certainly a relevant consideration on the application for a stay of proceedings. However, it seems to me that it must be considered with all other relevant circumstances, including those relevant to the third ground of appeal and including the complainant's ability to cope with the stress of being involved in criminal proceedings prior to 1997. In this regard there was evidence that the complainant had counselling over a period of 2-3 years after the separation of her parents and that she had later counselling as well. The complainant gave evidence explaining why she went to the police in September 1997 and not at some earlier point of time: "Because I wasn't ready and prepared to put myself - I have been through a lot after what he did, and I feel now that I am ready to be put through this, as ready as I can be, and I have other concerns." (See the transcript of evidence on committal of 29 October 1998 at p 26) 20 The complainant also told the magistrate in cross examination that it had been suggested to her that she make a complaint in 1994 or 1995, when she was seeing a counsellor, but that she declined to do so because she did not feel ready. 21 This brings me to the third ground of appeal. 22 The submissions of Mr Ierace address particular features of prejudice in this case because of the delay that has occurred. There was evidence given by a police officer, Det Littame, that inquiries disclosed that there were no police records relevant to the period of police involvement in 1979. Constable McCabe and Sergeant Fernley, who were identified as the officers who went out to the property in mid November 1979, have no recollection of any involvement, save that Constable McCabe recalled attending the matrimonial home on various occasions but could recall no specific incidents. There is, of course, no evidence that there were any investigations conducted by the police then and it cannot be assumed if there were any police records that concerned these alleged offences that they would have been useful to him in defending charges. If, however, the complainant did sign a statement, in 1979, the applicant would have been able to see if it was consistent with her subsequent account. 23 There was evidence that the complainant saw a doctor at the West Wyalong Medical Centre and it was this doctor who first referred her to a counsellor. That counsellor was Mrs Marshman, who gave evidence at the committal proceedings, so that the applicant is alert to such evidence as this witness may be able to give. Det Littame could find no relevant records in relation to the complainant's attendance at the medical centre. It would seem though that there was a medical examination of the complainant in 1979. The absence of any signs of sexual interference on such examination would not have assisted the applicant to resist these charges, because the nature of the alleged facts is such that, on the complainant's version, no sign of sexual abuse could have been expected to have been discoverable on her examination. Whether there would have been a complaint to the doctor, the terms of which the applicant could have used to point to some inconsistency is a matter of speculation. 24 According to the complainant's mother, an officer of the Department of Community Services monitored the position of the complainant, her siblings and her mother after the applicant left the home and she said this officer was informed of the allegations of sexual misconduct. Detective Littame's evidence was that Mr Palmer had no recollection of the Pike family and that there were no departmental records still in existence, but again there was nothing before the District Court judge to indicate that any contemporaneous records of the Department of Community Services would have been useful to the applicant in preparing to meet the offences charged. 25 There was evidence that the complainant's grandfather lived with the family for a period of some twelve months in the late '70s, and he is now deceased. The applicant has lost the opportunity of seeing whether this person could assist him in his defence, but there was nothing before the District Court to indicate that this person would have been in a position to assist. Indeed, the evidence indicated that the complainant's mother had no awareness of any sexual abuse being perpetrated on her daughter before 18 October 1979 and there is nothing to indicate that anything improper occurred in the presence of any person before the alleged events of 18 October 1979. 26 A further submission was advanced that the risk of contamination of the complainant's evidence exists because of the discussions that must have taken place with family members, counsellors and others over the years since 1979. The applicant cannot test whether this has happened by reference to contemporaneous records since these no longer exist. However, whether there were any records that would have proved useful to the applicant for this purpose is, as the Crown submitted, a matter of speculation. 27 The Crown, in written submissions presented to this Court, has referred to many cases where, notwithstanding complaint of evidentiary prejudice, a permanent stay of proceedings has been refused. One such case was R v VPH (unreported, NSWCCA, 4 March 1994) where this Court found no error in the decision of the judge at first instance in declining a permanent stay in a case in which multiple sexual offences were charged over twenty years after their alleged occurrence. However, whilst I have considered the various cases to which the Crown referred, I do not propose to record an analysis of them here. The decisions in those cases reflect the practical application of the principles to which I referred in para 10 above and the extent of the burden which the applicant has on the present application. 28 Certainly, in the event that the applicant stands trial, the trial judge will have a heavy responsibility to ensure the fairness of the trial, and to give to the jury appropriate instructions that alert it to the practical difficulties which delay may have presented for the applicant in seeking to meet the substance of the charges. However, that is a burden commonly faced by a judge presiding at a trial and the recognition that there may be difficulties in ensuring that a trial will be fair does not mean that there can be no fair trial: see Jago (supra) and the judgment of Brennan J, as he then was, at 47, and R v McCarthy, McDonald and Isaksen (unreported, NSWCCA, 12 August 1994) in which case Gleeson CJ said at p 12: "The substantial question to be addressed in cases such as this is whether it can be shown that it is not possible for the accused person to obtain a fair trial. 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." 29 In my opinion, the applicant has not established, having regard to all the circumstances of this case, that to allow this matter to proceed to trial would be an abuse of process, and I am not persuaded that this case falls into the exceptional category of cases where a stay of proceedings should be ordered. I have concluded that the applicant has failed to establish that the discretion of the District Court judge miscarried. 30 I therefore propose that leave to appeal from the decision of the District Court judge should be granted but that the appeal should be dismissed. 31 DOWD J: I agree with the proposed orders of Studdert J, and his Honour's reasons for such orders. 32 BELL J: I agree with Studdert J for the reasons given by his Honour. **********

R v Pike

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Before

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Judgment (10 paragraphs)

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