R. v Wrigley [1998] QCA 412

Court of Appeal (Qld)|1998-12-04|Before: Before McPherson J, White J, Chesterman J, Pherson J

1 I agree with the reasons of Chesterman J. for saying that this appeal must be dismissed. The appellant's real difficulty is, as his Honour has pointed out, that there is simply no evidence on the basis of which it can be said that he suffered prejudice as a result of delay in bringing the prosecution. He gave no evidence in support of his application to stay the proceedings. It is therefore not possible to say whether the missing witnesses would have helped to confirm his account of events. They might well have contradicted it. The same goes for the suggestion that they or someone else might have provided an alibi. There is simply nothing to suggest that the appellant was absent on the occasion in question.

2 The whole matter is simply left to depend on speculation. Unless it is the law that mere delay in instituting criminal proceedings necessarily calls for their being stayed, the application before the primary judge was bound to fail. The authorities show that that is not the law. It follows that the appeal must be dismissed.

2 In effect, the submission as to alibi was that the delay was such as to deprive the appellant of the opportunity to remember if he had an alibi, but that submission was supported by no other evidence even from the Bar table as to why this would be so.

3 As his Honour has noted, there was nothing to suggest that the persons who might have been witnesses would assist the appellant. On the complainant's account they would not have done so. Whilst deprecating the delay in dealing with this matter by the investigating authority, there were no exceptional circumstances such as to make the decision not to grant a stay erroneous.

1 On 31 August, 1998 the appellant was convicted of unlawfully and indecently assaulting Kathryn Elizabeth Young, and of unlawfully assaulting Ms Young thereby doing her bodily harm. The offences were both committed on 9 January, 1993, five and a half years earlier. The appellant was not charged with the offences until January, 1998. Prior to being charged he had no notice that Ms Young had complained to the police about his conduct.

2 When the case was called on for trial, counsel for the appellant sought an order from the trial judge that the prosecution be permanently stayed on the ground that delay in the investigation of the complaint had deprived him of any chance of a fair trial. The trial judge refused the application and the trial proceeded. The Crown called the complainant, Ms Young, and two police officers, one of whom spoke to the complainant shortly after the occasion of the assaults. She noticed bruising to the complainant and recommended that she consult a doctor. The other police officer had been given the task of investigating the complaint in or about December, 1997.

3 Ms Young's evidence was that on the occasion of the assaults she was sixteen years old. She knew the appellant and went to his house with some friends for a party which appears to have been a small and quiet affair. She went to bed at about nine o'clock in a spare bedroom at the back of the appellant's house. She was fully clothed, wearing jeans and a T-shirt. She went to sleep but was woken sometime during the night by a male who jumped onto the bed and requested intercourse. She refused but, undeterred, he fondled her breasts and put his hand between her legs on the outside of her jeans. When the complainant resisted she was struck on the face by a closed fist. She was able to escape from the bedroom and went to the lounge where a friend of hers, Theresa Jones, was sleeping on the sofa. While speaking to Ms Jones, she was struck from behind by the male who had followed her from the bedroom and whom she could identify in the light as the appellant. She was the subject of a further attempt of violence by the appellant who was stopped by the presence of another occupant of the house, a male described only by the name "Charlie".

4 The challenge to Ms Young's evidence was slight. Cross-examination consisted mostly of eliciting further details of the events she described in her evidence-in-chief. A suggestion was made that another male, known only as John, who was said to be Ms Jones' boyfriend, might have come into the lounge at about the time she was assaulted. The suggestion was denied. The only other contests raised by the cross-examination were these:

"Q. The position is that you can't say who it was who entered that dark room when you were woken from your slumber, can you?

Q. And the position is that in the lounge room Mr Wrigley didn't assault you, did he?

A. You can't say that because I heard his voice. Just because I didn't see him, doesn't mean it wasn't him.

Q. No, I am taking you to the lounge room now. The position is, isn't it, Ms Young, it wasn't Mr Wrigley who assaulted you?

A. It was so. The only other person in that lounge room was Theresa until Charlie came out."

The appellant did not give evidence nor did he call evidence on his behalf.

5 The only ground taken on the appeal is that the trial judge erred in not ordering that the prosecution be stayed. It is convenient first to set out some relevant principles:-

"[T]here is a strong public interest in the prosecution of serious offences and the conviction of offenders. However, ... the public has a superior interest in ensuring that judicial processes are not abused, that accused persons' trials are fair to them ..., that innocent persons are not convicted and that public confidence in the administration of justice is maintained": per Fitzgerald P in Johannsen and Chambers [1996] QCA 111; (1996) 87 A Crim R 126 at 131;

"... the starting proposition is that a prosecution will be stayed as an abuse of process only in `exceptional or extreme' cases ...": ibid at 132; and

"... there is a strong predisposition toward permitting prosecutions to proceed, with procedural and other rulings and directions moulded to achieve a fair trial which produces a result free of the taint of risk of miscarriage of justice ... . A stay should not be granted if the prosecution can proceed, uninfluenced by improper purpose, without unfairness to the accused, with a legitimate prospect of success and, in the event of conviction, no significant risk that, because of delay or other fault on the part of the prosecution, an innocent person will have been convicted": ibid at 135.

6 In Jago v. District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, Mason CJ said:

"The continuation of processes which will culminate in an unfair trial can be seen as a `misuse of the Court process' which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial. ... [T]he power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed" (at 30-1).

"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 and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed ... will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused ... . In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare ..." (at 33-4).

7 The reasons for judgment of Mason CJ from which the passages quoted were taken were referred to with approval by Mason CJ, Deane and Dawson JJ in their joint judgment in Walton v. Gardiner (1993) 177 CLR 378 at 395. Their Honours went on:

"As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice" (at 395-6).

8 The application for the stay was not supported by evidence, either oral or on affidavit. Counsel who appeared at the trial when making the application said it "may involve giving of evidence of one witness" but that adumbrated course was not followed. Instead, statements were made from the bar table which appear to have been accepted by the prosecutor and no point was taken on the appeal as to insufficiency of the form by which the basis of the application was put before the trial judge.

9 The application for the stay was put only on the basis that there could not be a fair trial because of the lapse of time between the alleged offence and its prosecution. Delay was said to occasion unfairness in two respects. One was the dimming of recollection to be expected in all witnesses with the passage of time. The other, more particular, point was that the other persons who were present in the house when the offences were said to have been committed, namely Theresa Jones and Charlie, could not be located either by the police or the appellant. Had the charge been brought timeously they may well have been found, but all trace of them had disappeared with the passing of the years.

10 The responsibility for the delay was entirely the prosecution's. Apart from taking a statement from Ms Young, the police did nothing (unless sending the file to another police district in the vague belief that the appellant may have moved to that vicinity constitutes something) until Detective Peterson was given the file in December, 1997 and told to proceed with the complaint. No attempt was made to find and interview Theresa Jones or Charlie until Detective Peterson took charge of the file.

11 Delay, even considerable delay, in prosecuting a charge is not enough to justify a stay of criminal proceedings. As a general rule, the public interest that persons suspected of committing offences should be prosecuted will not be overcome by delay in such a prosecution unless that delay has caused such disadvantage to the accused person as to deprive him of the chance of a fair trial. See Jago at 72 per Toohey J. The fading of recollection is normally a benefit to the defence, not a disadvantage. See Jago at 60 per Deane J.

12 It is at this point that the appellant encounters difficulty. There is no basis for a finding that the appellant's chances of an acquittal were diminished by the absence of testimony from Theresa Jones or Charlie. It is, of course, possible that they would have corroborated the evidence of Ms Young. On her version of events, both of them witnessed the second assault (that in the lounge) and one or both of them may have observed something corroborative of the incident in the bedroom.

13 There is no evidence from which it might be inferred that either missing witness could have said anything tending to exonerate the appellant. He did not support his application for a stay by any assertion, even by his counsel from the bar table, of what they might say to help him. Moreover, he did not give evidence at the trial of a version of events which contradicted the complainant. Of course, no inference of guilt can be drawn from his remaining silent but the effect of his choice is that there was no story contradicting the complainant's. Had there been evidence that the appellant was not involved in the assaults on Ms Young it might be thought that Theresa Jones or Charlie could have corroborated it. Nothing was put forward that could have been the subject of corroboration.

14 In summary, the complainant's evidence provided a basis for concluding that the evidence of the missing witnesses would have assisted the Crown. There was no evidence to provide a basis for concluding that their presence could have assisted the appellant. It cannot therefore be seen that the delay which caused the testimony of the witnesses to be lost was prejudicial to the appellant.

15 It was said on behalf of the appellant in support of his application for stay that the absence of the witnesses deprived him of the opportunity of calling alibi evidence. The trial judge rightly pointed out that the submission was worthless without some evidence from the appellant that he was not present when the complainant was allegedly assaulted. The appellant offered no hint of such evidence, either on the application for stay or during the trial.

16 In my opinion the refusal of a stay by the trial judge has not been shown to be wrong and I would dismiss the appeal.

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Judgment (33 paragraphs)

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Cases Cited (2)