· On 31 January 1974, the complainant began her secondary education at Maroubra Bay High School in first form.
· In the summer of the early 1970's, there was a New Year's Eve party held at the complainant's parents' home in Maroubra.
· Ethel (Schultz) the mother of a friend of the complainant (Heather Schultz) stated that this party was in 1974.
· The complainant's father remembers the party but he was unable to assist as to when it was but remembers that in the course of a New Year's Eve party at his home there was a complaint that Heather Schultz had scratched the applicant.
· On 10 October 1977, the complainant left High School when she was in fourth form.
· In 1979, the complainant began a relationship with David Watson.
· In June 1981, the complainant gave birth to twins and with David Watson and the twins moved to Perth.
· In about 1985, the complainant told David Watson that she had been raped by this person when she was 13 to 14 years old.
· On 21 November 1989, Dr Vaux began treating the complainant.
· On 6 February 1995, in the course of either a treatment or consultation, Dr Vaux made a note as follows:
"Thinking of "suing" a man who abused her aged 12, was drinking on sly, molested her - also she was employed by him. Three X further, episode of intercourse 2x2/12. Later ran away from home. Sees it as beginning of problems. Did try to do something 8 years ago."
· In 1996, the complainant rang the Police Royal Commission. She was not informed of any outcome.
· On 10 September 1997, the complainant reported assaults to Snr Const Bassingthwaighte.
· On 17 April 1998, the complainant was referred to the Eastern and Central Area Sexual Assault Service by Maroubra Police after making initial enquiries with them about reporting a sexual assault perpetrator against her when she was in her early teens (13 to 14 years old).
· On 30 April 1998, the complainant began counselling with social worker, Tony Phiskie, who provided her with the book, "The Courage to Heal" for her to read.
· On 24 June 1998, Phiskie accompanied the complainant to Maroubra Police Station where she made a full statement to a police officer in respect of the matters alleged in the indictment.
· On 7 October 1999, the applicant was interviewed at his business premises by Detective Pincham.
· On 13 October 1999, the applicant was charged by way of Court Attendance Notice.
· On 20 October 2000, committal proceedings began in the Downing Centre Local Court and the complainant was cross-examined on that day.
· On 6 December 2000, committal proceedings continued. Dr Vaux gave evidence.
· On 1 March 2002, committal proceedings continued with evidence from Dr Roberts. This concluded the committal proceedings and the applicant was committed for trial to the Sydney District Court for arraignment on 8 March 2002.
· On 13 June 2002, an extensive letter was written by the applicant's solicitors to the Director of Public Prosecutions requesting that the proceedings be no-billed, which request was refused by letter from the Director dated 24 July 2002.
11 In cross-examination at the committal, the complainant conceded that she had a criminal history in Western Australia involving crimes of dishonesty, drug supply and drug possession; and that for a considerable period, she was addicted to drugs and led a criminal lifestyle.
12 In his judgment, Nash ADCJ, after an extensive review of the evidence dealt seriatim with the various grounds of the application. As to the prejudice to the applicant caused by the delay, his Honour referred to Jago v The District Court of New South Wales (1989) 168 CLR 23, R v Nicholson (1998) 102 A Crim R 459 at 467-8, R v Davis (1995) 81 A Crim R 156 and other cases, and noted that delay itself is not sufficient, that actual prejudice by reason of the delay must be shown, and is not presumed, although the longer the delay, the more likely it will be that actual prejudice can be shown.
13 He concluded that the only prejudice to this applicant in a properly conducted trial was such as arose from the delay. His Honour noted that even if the year could not be specifically determined, the occasion of the allegation in the first count was the night of a New Year's Eve party at the house of the complainant's parents at which the applicant and his wife were present, and there was no suggestion that there was more than one such occasion, whilst the events charged in the second and third counts were alleged to have occurred in the school holidays of the January following the New Year's Eve party, whilst the complainant was doing some work for the applicant.
14 On this, or any other point, there was no evidence from the applicant, and the only relevant evidence was from his solicitor, whose affidavit said that he was instructed that the applicant held no work records, appointment books or diaries in respect of any of the periods relevant to the indictment, that all such records as existed had long since been destroyed or lost and that the applicant had since sold his business. His Honour observed that the applicant may not have kept any record of wages paid to the complainant during that period, although the applicant or his wife may have kept a diary which may have recorded the party, but observed that the solicitor's affidavit did not specify any instructions as to whether or not the applicant had a memory of the particular party, which led him to infer that he probably did have a memory of the party, and of the complainant working for him in the school holidays.
15 As to the second ground (that the complainant's evidence was inadmissible being based on hypnosis, repressed and revived memory), his Honour reviewed the medical evidence and found the ground not made out. As there is no application for leave to appeal in respect of this ground, it is not necessary to consider it any further.
16 As regards the submission that the applicant's evidence was completely unreliable and that accordingly, the prosecution was doomed to failure, his Honour reviewed the complainant's evidence and notwithstanding the various criticisms which could be, and were, made concerning her lifestyle in the intervening years, found that her evidence on the essential matters had the ring of truth about them, although her evidence as to peripheral matters including times, forms of complaint, etc could lead a tribunal of fact to consider the whole of her evidence unreliable, particularly in the light of the numerous directions and warnings which the trial judge would be required to give. However he considered that, particularly if the applicant did not give evidence at the trial, a properly instructed jury could find the applicant guilty of one of more of the offences charged and consequently the proceedings were not doomed to failure.
17 In relation to the health of the applicant and his wife, his Honour referred to R v Hakim (1989) 41 A Crim R 372 and R v Littler (2001) 120 A Crim R 512, and the medical reports which were before him from the applicant's general medical practitioner, Dr Craig, and concluded that it would not offend common humanity to require him to stand trial, and so it was not one of those rare cases where by reason of health, age and delay, a stay should be granted.
18 He also considered the various grounds in combination and concluded that no basis had been established for permanently staying the proceedings.
19 In R v Kennedy (unrep - NSWCCA - 9 December 1998) at 5, I summarised the principles that apply in respect of appeals of this nature as follows:
"As the power to grant a stay is discretionary, the ordinary principles relating to appeals in respect of the exercise of discretion apply; see House v The King (1936) 55 CLR 499 at 504 to 5. In R v Alexandroaia (1994) 81 A Crim R 286 at 290, this Court said in relation to appeals on discretionary matters:
There is a strong presumption in favour of the correctness of the decision, but that presumption will be overcome where it is shown that the judge has acted on some wrong principle, or has given weight to extraneous or irrelevant matters, or has failed to give weight to relevant considerations, or has made a mistake as to the facts. Even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellate court may infer that there has been a failure to properly exercise that discretion.
The right to a fair trial is basic to our criminal justice system and to ensure that innocent people are not convicted of criminal offences, a stay of proceedings may be granted to prevent an unfair trial: Jago v District Court of New South Wales (1989) 168 CLR 23. But that right must be balanced against the right of the community to expect that persons charged with serious criminal offences are brought to trial and the grant of a stay of proceedings is discretionary and the circumstances will usually have to be extreme for such relief to be given. The onus lies on the applicant for a stay to demonstrate that the disadvantage or prejudice which he would suffer by refusal of a stay is, in a relevant sense, unacceptable to the extent that the trial would be unfair: R v Helmling (CCA - 11 November 1993) at p 4 and authorities there cited. See also R v Tolmie (CCA - 7 December 1994)."
20 The first ground of appeal is something of a "rolled up" ground in that it claims that the prosecution is doomed to fail and that the continuation of the trial proceedings is oppressive and an abuse of process. It was submitted that, because of the delay, any trial of the applicant would be unfair to him, and because the complainant's evidence was unreliable, the prosecution would ultimately fail and the applicant would be acquitted. In one sense, these submissions are contradictory. The reason why a trial is stayed on the ground that the trial would be unfair to the accused is that it could result in the conviction of an innocent person, but the conviction of an innocent person is not possible if the prosecution is bound to fail.
21 As Brennan J pointed out in Jago at 47, there are a number of circumstances which can present obstacles to a fair trial, such as prior adverse publicity, death or absence of material witness, or absence of competent representation, but they do not cause the proceedings to be permanently stayed. His Honour went on:
"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."
22 In the same case, Mason CJ said at 34:
"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…Where delay is the sole ground of complaint, an accused seeking a permanent stay must be able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute."
23 The substance of the applicant's complaint is that because the applicant has given different versions as to whether she was 12 or 13 or even 14 years old at the time, she is unable to pinpoint the precise year of the New Year's Eve party at which the first assault occurred and accordingly, the applicant is required to account for a three-year period of his life some 30 years ago and this places an intolerable burden upon him. It was submitted that the indictment already alleges a lengthy period as the dates within which the offences are alleged to have been committed, that this has already been amended once and, if the applicant was in fact 14 years old at the time, it would need to be amended again, and that such amendment would not be granted. It was further submitted that because of the imprecision of the date, he is not able to avail himself of possible alibi witnesses who may have been available if the dates had been specified with precision, and the proceedings brought much more promptly.
24 I am satisfied that his Honour took all these considerations into account. It is not the case that the applicant is being required to account for a three-year period. He is being called upon to recall a New Year's Eve when he attended a party at the home of the complainant's parents, and the January school holidays immediately following that party in one of two or possibly three years. There may be some doubt and confusion about which year it was, but there is no doubt about the occasion and the period of the holidays.
25 Moreover, in relation to the second and third counts, not only are they identified as occurring in the school holidays following the New Year's Eve party previously referred to, but each of them are alleged to have occurred in specific premises at a particular address, namely on the corner of Fitzgerald Avenue and Bunnarong Road, Maroubra where there was formerly an abandoned army barracks, but presently a gymnasium. The applicant who lived and worked in the area for many years is no doubt familiar with the location of the premises and would know whether there was formerly an abandoned army barracks on the site; if he did not know, it could presumably be checked with the local council's records. He would also know whether he ever drove the complainant in his car inside the said army barracks and if so, for what purpose, as it would be unlikely to be part of her duties to go there whilst employed by him delivering pamphlets.
26 In a case like the present where the occasions and the locations are specifically identified, the actual date is of less importance from the point of view of an accused defending the charges, and if the Crown were to seek to further amend the dates in the indictment to include the possibility that the relevant dates were 1975-6 I for myself see no reason why it would not be proper for such amendment to be allowed, subject to the possible relevance of s 78 of the Crimes Act as it stood at the relevant time, which I deal with separately at the end of this judgment.
27 Of course, in a case such as this where there has been a lengthy delay in complaint in a sexual assault case, the judge would be required to give a direction in accordance with Longman v The Queen (1989) 168 CLR 79, and the other warnings and directions which are conveniently summarised by Wood CJ at CL in R v BWT [2002] NSWCCA 60, 54 NSWLR 241 at para [32]. These are the things that the Court can do to prevent the trial being unfair, and provided these warnings are given, the accused will receive a fair trial.
28 His Honour paid particular attention to the prejudice which it was alleged the applicant would suffer by reason of the delay in complaint, and I can see no error in his Honour's approach or his conclusion. Similarly, he considered the presentation of the complainant as a witness and was not satisfied that the proceedings were doomed to failure, although he accepted that the applicant might be acquitted, which is a very different thing. Once again, I can see no error in his Honour's approach or his conclusion.
29 The second ground of appeal was that, although the learned primary judge referred to the decision in Jago, he failed to correctly apply the principles set out therein, and reference was made to dicta of Deane J at 60-61. It was submitted that the effect of that passage is that a judge considering an application for a stay must consider: