Regina v R W O

29 Mr Toomey relies upon the evidence of the other family members, together with passages in the complainants' evidence given at the committal hearing, in support of his submission that their accounts are irremediably contaminated.

30 On 3 December 1997 LJL (the youngest of the applicant's sisters-in-law) made a statement to the police. She was then aged forty years. She recalled occasions when she and SML stayed for the weekend at the Ivanhoe property. She said that the applicant frequently fondled her breasts and SML's breasts commenting on how they were developing. He had fondled her genitals. LJL said that when she and SML stayed at the Ivanhoe property they slept on the verandah under gauze. The applicant would lie on the bed between them. On one of these occasions she remembered feeling his erection although he had never got into bed with her. She recalled the applicant bathing her and SML every night. The applicant would wash their genitals very thoroughly. She would leave the bathroom first while SML remained there for another half hour. 31 In her statement LJL said: "When we were moving to Captain's Flat in 1967 I was about ten. SML stayed out there and was going to stay for all of that year, but when we went back out there at Easter, around my birthday, she begged Dad to take her home. I don't think she ever told Dad why, she just said she wanted to go home. She told me later that she saw a picture in a magazine in Dad's car of a spermicide foam that she recognised was what he had been using on her because she had gotten her period when she was eleven. SML didn't really tell me when we were younger, but told me more about what had happened to her at RWO and SJO's after her marriage broke up when she was twenty-two. She started to have a lot of problems after that. I did kind of know though. Even after SML came home SJO and RWO would still see us a lot at family functions and SJO had her first baby after that." 32 RPL's former husband, provided a statement to the police on 19 December 1997. He recalled that around 1977 the applicant and his family came to visit and that during their stay RPL said to him: "He was always sticking his hands down my pants when we were kids". 33 LJL's husband made a statement to the police on 29 July 1998. He and LJL married in 1984. In 1987 when the applicant and his family were planning to visit LJL told him of the applicant that: "When I was nine years old and SML was ten, RWO used to fondle our breasts and bottom…….RWO tried to have sex with us numerous times. I told him no and he made me stand there with heavy books in my arms until I could not hold them up anymore and he kept calling me a brown eyed, black haired, boring bitch".

Generally, LJL complained that she did not feel comfortable with the applicant staying at her home because her daughter was about the same age as she had been at the time of these incidents. 34 TML made a statement to the police on 6 April 1998. She had grown up as the youngest child in the family. In her statement she gave an account that she had been sexually molested by the applicant. She had not spoken about these matters with her sisters. She told her husband following the birth of their daughter in 1990. Her revelation was prompted by a proposed visit from the applicant and his family. At the time of making her statement to the police TML had been away for some time and had only discussed these allegations with her sister by telephone. She said: "Because I have been away for a year I have only had phone conversations with my sisters about it. I think Mum wrote and told me LJL had written to SJO and told her what RWO had been doing to her. I didn't know that he had done things to them too. On Christmas day 1997 when I rang Mum and spoke to her from Venezuela she asked me outright had RWO ever done anything to me and I said, 'Yes he has.' There are other times that I remember him groping me, but I can't remember actual dates or anything." 35 EJL, the mother of the complainants, made a statement to police on 5 November 1997. In that statement she said: "About six years ago I was living near Ariah Park. I was at home one day when LJL telephoned me and was talking to me. She said to me something like, 'RWO molested SML when we were holidaying with him and SJO'. She kept talking and she said to me, 'He was always touching us both up and groping us'. By this I understood LJL was talking about when RWO was first married to my daughter SJO and RWO were living at a property called "….." via Ivanhoe. They lived at an area on that property called "…..". I used to let my daughters, SML (then aged ten) and LJL (then aged nine) spend weekends and some school holidays with them." 36 EJL went on to state that she had not been surprised by the allegations made by LJL because over the years she had observed the applicant to grab her daughters around the breast and vagina. This was done when they had their clothing on and it was in the guise of teasing and romping with the girls. EJL said that the applicant had regularly grabbed at her breasts and vagina and joking about it. EJL went on to say: "Although LJL had told me this about RWO and SML when I was living at Ariah Park, I did not ask SML about it because LJL told me SML felt shamed by what had happened. I was also hesitant to bring it out in the open because of what it might do to SJO's life. LJL and I spoke about what RWO had done most times that we met. These being mainly Christmas and on our rare visits to Canberra. Some of those times SML was there as well. SML said to me on one occasion when I spent an afternoon with both daughters at LJL's house, something like, 'When we were on holidays at "……", SJO used to go to bed early and RWO used to bath us. When he did this he used to wash our fannys with his bare hands'. … SML kept talking and said something like, 'He used to send LJL off to bed and lock the bathroom door and hang a towel over the keyhole. He ejaculated on my stomach'."

EJL went on to outline the account that SML had given of how the applicant had inserted a foaming capsule into her vagina telling her that her hymen had been damaged by horse riding. She went on to say: "I remember we first left Darnick before SJO and RWO had their first child, N. This would have been about 1967, as N was born December 1967. It was around this time that SML and LJL used to go to RWO's and SJO's house for holidays. The last holiday they had there when SML begged her father was about this time, within a couple of months either side of N's birth. LJL has talked to me more about what RWO had done to both her and SML in the past. She talks about it most times we have been together." 37 It is apparent from EJL's statement that between 21 and 24 September 1997 (or shortly before those dates) she had a telephone discussion with her daughter (the applicant's wife, SJO) about a letter that LJL had sent to SJO. On 2 November 1997 EJL spoke with her daughter, JML. She showed JML notes she had made of the things that RPL had told her. She asked JML to read the notes and see if they were correct. JML read the notes and said: "No he never got that far with me, I always punched him up and stopped him. He did feel my breasts when I was developing and he used to say to me, 'I'm just checking to see if you're big enough to wear a bra'".

RPL arrived at the time that EJL and JML were discussing these matters. RPL said: "He did that with me as well". 38 RPL was cross-examined at the committal hearing about the circumstances in which she came to make her statement to the police in 1997. She said that her mother invited her to come to the family home and to speak with Detective Porta. This was around September or early October 1997. RPL described this as a period of disruption and upheaval in the family's life. Her mother was undergoing a good deal of stress that RPL understood to have been caused by SJO's refusal to ever speak with her again. An inference to be drawn from this evidence (when taken in conjunction with other evidence) is that after LJL wrote to SJO detailing the allegations of sexual abuse, SJO broke off contact with the family including with her mother. The cross-examination of RPL continued: "Q. Well when was it that you first told your mother that you had been sexually assaulted in the way you've described in your police statement? A. It's hard for me to remember exactly when but it was probably in about the mid-'70's when - although I think it was only then with my sisters and it may not have been until later that I spoke to Mum about it (10/2/99 at 7). …

Q. That of course was something that happened many years prior to 2 December 1997, that revelation to your mother, wasn't it? A. Yes, that's why I can't remember exactly. Q. And thereafter did you discuss the matters with your mother on many occasions? A. Yes, we did. Q. And firstly if you can, can you say to this Court on how many occasions you discussed it with your mother? A. No, I can't, I'm sorry. Q. Would it be more than half a dozen? A. Yes. Q. Would it run into the twenties or thirty occasions, or even more? A. Probably not 'or even more'. Q. Could be as many as thirty occasions? A. Could be, yes. Q. And on any of those occasions, were people other than your mother and yourself present? A. Yes, my other sisters. Q. Alright, now which ones were present on other occasions? A. All of them. Q. At various stages I take it? A. Yes. Q. And whilst they were present did any of them similarly discuss allegations of sexual assault upon them? A. Yes. … Q. Alright, so if this be - an accurate summary? On various occasions SML, JML and LJL, in your presence and in the presence of your mother, have made allegations of sexual assault upon them by RWO. A. Yes, we talked about it and supported each other. Q. And supported each other? A. Yes." (T10/2/99 at pp 9-10). 39 SML was cross-examined in the following terms: "Q. Madam, when you came to make this statement on 3 December 1997 it wasn't the first time that you'd ever discussed with anyone what you say RWO had done to you, was it? A. No, it wasn't. Q. In fact you had been discussing that for many years with members of your family, hadn't you? A. Very briefly without any detail. I just had informed some members, not all, some members - especially the sister closest to me, my sister, LJL - and friends, and boyfriends, husbands, psychologists, counsellors and certain people over the years as I've been seeking help for my mental problems and they - I have mentioned it many times over the years, yes, briefly to my family." (T10/2/99 p 52). 40 SML said that she had been treated by a psychologist for a period of six months for chronic depression, grief and stress. She said she had given a full account of the sexual episodes to the psychologist. In this regard she said that she had answered the questions that he asked of her. 41 SML said she had spoken with her sister, before LJL sent the letter to SJO containing the allegations. She, too, gave an account that their mother had been very upset when the matter came out. Of significance in the way the applicant put his case upon the oppression ground was the following passage in the cross-examination of SML: "Q. Can you answer me this proposition. When was it decided, if it ever was, that a complaint would be made to the police. When did you make that decision? A. Well it would have been some time after we first initially wrote the letter, a couple of weeks after that or three or four weeks after that possibly. Q. Did you have a discussion with somebody about that decision? A. No not necessarily. Like I said I wasn't necessarily capable and my sisters were helping me with my just general daily living and that sort of thing, they were helping me, and LJL wrote the letter, SJO rang Mum. Mum was very upset and then I think, I believe that Mum's husband was the one that actually went to the police because he was distraught about how upset Mum was. Q. I think that's the proposition I started with some minutes ago? A. Yes, yes, but with our permission. Oh yeah, it was like, you know 'R really wants to go to the police, are you OK with that?' and I said, 'Yes please do it', because I would have been afraid to do it personally myself, I needed someone to do it. Q. Just calm down for a moment, madam. There was a discussion do you say in which someone said to you, 'R is going to the police about this, are you in agreement', is that right or is it wrong? A. Well not necessarily but that was like - the discussions were just very light and like not necessarily direct, it was indirect through different sisters and that sort of thing and the idea was R - I knew that R wanted to, at a point, and I said, 'Yes I hope he does'. Q. Well who did you say that to? A. Well I think I said it to LJL. I mean Mum had rung LJL and talked to her about it and was saying how upset R was and that she wasn't sure if she could in fact stop R going, and maybe Mum was saying that he may do it on his own accord anyway. Even if we say no, he may still want to. And I said, 'Well I wouldn't say no, I would be very agreeable if he wanted to', I said to LJL, 'You know if Mum says R is going to go, let him, I don't mind'" (10/2/99 at 81-82).

The affidavit evidence relied on by the applicant 42 In his affidavit sworn on 19 February 2001 the applicant stated that he had no knowledge of the allegations made against him until about three weeks prior to the death of his father-in-law in 1997. Until this time he had not been aware of any problem in his relationship with either of the complainants. 43 The applicant said that prior to his marriage in 1965, EJL had accused him of having sexual relations with SJO. She had demanded to know whether the couple were using birth control. On an occasion EJL demanded to search the applicant's car to look for birth control items. He was not now able to recall whether either of the complainants were present when these conversations took place. He considered that they may well have been and noted that EJL had not been discreet in making enquiries on this topic. Generally, the applicant stated that he was unable after this interval to give the precise terms of the conversations or to say who was present. 44 In her statement SML said that the applicant is circumcised. In his affidavit the applicant referred to a conversation that took place shortly after his marriage in which EJL asked him, "If you ever have a boy will you have him circumcised?" and "Are you circumcised?" To which he responded, "Yes". He said that the conversation took place in the presence of the complainants and other members of the family at the dining table at the home in Darnick. The applicant believes that the complainants' father could have corroborated his account of the conversation.

45 The applicant said that EJL had spoken of a romantic attachment that she had formed with an uncle when she was young. She and the uncle had kissed and he had touched her behind the water tank at her home. The applicant believes that both the complainants were close by at the time of this conversation. However, due to the passage of time, he was unable to give an exact account either of the terms of the conversation or of who else was a party to it.

46 The applicant said that in the period January to April 1966 the only person who slept on the verandah of the Ivanhoe property was his uncle, Harry. Harry died in 1990. 47 The applicant described the outdoor toilet at the Ivanhoe property. The front, back and eastern side of the toilet were visible from the house. The western side could not be seen. The cement slab on the western side of the toilet jutted out from the side by only eight to ten inches. The yard was not landscaped in that area and was dominated by prickles and red earth. Harry would have been familiar with the features of the property, including the outdoor toilet. 48 The applicant said that there was no working lock on the bathroom door of the Ivanhoe home. Harry would have been able to confirm that fact. 49 The applicant denied using any form of birth control prior to 1975. There was no pharmacy in Ivanhoe. He and his wife purchased pharmaceutical goods from the Swan Hill pharmacy. 50 The applicant said that there were no water tanks lying on the ground near either of the houses at which the family lived in Darnick. Darnick was an area of high wind and water tanks would not have been left lying around because of the danger had the wind caught hold of them. 51 The applicant no longer knows anyone who was a resident of Darnick in 1965/1966. 52 The applicant said that his memory of the events surrounding the allegations was poor. In June 1998 he suffered an episode of confusion when driving his truck. He was not able to remember telephone numbers and did not know where he was or where his work was. This episode passed, however it was his view that he continued to have memory problems. I deal with the medical evidence on this topic below. 53 SJO swore an affidavit on 19 February 2001. She stated that following her marriage to the applicant they moved to Harry's house, which was situated outside Ivanhoe. There was some delay before Harry moved out. After they arrived Harry's furniture was stored on the verandah. He slept on the verandah. Harry remained at the Ivanhoe property until early April 1966. During the period January to April 1966 neither of her sisters slept on the verandah. 54 SJO gave a description of the outside toilet at the Ivanhoe property confirmatory of the applicant's account.

55 SJO also said that the bathroom door at the Ivanhoe home did not have a working lock. The house had been sold and transported elsewhere in or about the early 1980's. 56 The settlement of Darnick no longer exists. It was a small community close to the western railway line, between Ivanhoe and Menindee. The railway houses that were located in Darnick were transported elsewhere in the early 1970's. SJO does not know where any of the people who lived at Darnick are now located. 57 SJO said that there were no empty water tanks lying on the ground at Darnick, either at the house in which the family had first lived or the railway house to which they had moved. 58 Generally, SJO deposed to Darnick as having been a close-knit community and to the railway houses having been located quite close to each other. She said that her brother was the only one of the children who slept out on the verandah in the period prior to her marriage. She observed: "It was an open verandah with a half wall. It is quite likely that other members of the community would have been aware that David was the only person sleeping there during that period of time. In particular, Jim Taylor who was a neighbour and who knew our family was killed in a motorcycle accident in the early sixties or early seventies. He too could have confirmed what the sleeping arrangements were and that they were contrary to those described by my sister" (Para 16). 59 SJO said that she and her husband obtained pharmaceutical products from Swan Hill or by mail order from Soul Pattinson in Sydney. They had an account with Soul Pattinson. She knew nothing of the purchase of any spermicidal contraceptives. The Swan Hill pharmacist, David Stynes, died some years ago. She does not believe that Soul Pattinson would still have records of the family's account from their days in Ivanhoe. 60 SJO said that SML stayed at the Ivanhoe property from around February until June 1967. She then returned home with the rest of the family at a time when SJO was pregnant. SJO's father died at the end of July 1997. SJO stated that he: "Could have corroborated that SML was not distressed at staying with us and that she did not urge him to bring her home early".

The father could have also corroborated that there was no conversation in which he told SML that he would take her away and that she would be safe. He could have given evidence that the family did not come to visit the Ivanhoe home at Easter 1967. Generally, he could have corroborated the cordial nature of the relationship between her husband and the complainants. 61 Mark Beresford in an affidavit sworn on 12 February 2001 deposed to making searches in the National Library in Canberra to locate the article referred by SML in her statement to the police. At the committal hearing she described it as being a two-page article in the Time Life Magazine. Mr Beresford states that he searched the index for Time Magazine for the years 1962 to 1969 and found no article matching the description given by SML. He searched the index for Life Magazine for the same period and, again, found no article matching the description given by SML. He searched the Time-Life International (Australia) Magazine collection maintained by the National Library. This collection is not indexed. Mr Beresford searched through each magazine held by the Library. The Library's collection of hard copies of Time Life International (Australia) for the years 1967 and 1968 is incomplete. The November 27 1967 issue of Time Life contained an article on contraception and related issues. Mr Beresford states that this article and a further article in the series (December 11 1967 issue) did not fit the description of the article given by SML.

The power to permanently stay proceedings on indictment

62 The principles upon which a court will permanently stay proceedings on indictment are well settled. They are enunciated in Barton v the Queen (1980) 147 CLR 75 at 111; Jago v the District Court of New South Wales (1989) 168 CLR 23; Glennon v the Queen (1992) 173 CLR 592; and Walton v Gardiner (1993) 177 CLR 379. 63 It is a power to be exercised only in exceptional cases; Jago per Mason CJ at 31. In Jago Gaudron J explained why that is so at 76: "The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise. The power is, in essence, a power to refuse to exercise jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised. In this context it is relevant to note the remarks of Deane J in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at p 399, that the 'prima facie right to insist upon the exercise of jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is 'amenable to the jurisdiction' of the courts and other public tribunals'. Thus, the power is one that is readily seen as exercisable (whether in civil or criminal proceedings) only in exceptional cases or, as was said by this Court in refusing special leave to appeal in Attorney-General (NSW) v Watson , 'sparingly, and with the utmost caution'." 64 It will be appropriate to permanently stay proceedings on indictment in a case where, as the result of delay, the continuation of the proceedings would necessarily result in a trial which was unfair. As Mason CJ observed in Jago at 33: "In the safeguarding of the interests of the accused in the manner I have described, the touchstone in every case is fairness. … 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: see Barton (1980) 147 CLR, at pp 102, 106; Sang [1980] AC at p 437; Carver v Attorney-General (NSW) (1987) 29 A Crim R 24, at pp 31, 32. 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. … 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 (1980) 147 CLR, at p 111, per Wilson J. 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': Clarkson [1987] v R, at p 973." 65 The delay in this case has been very great indeed. However, commensurate delays, even greater delays, have not of themselves been held to be a sufficient basis for a court refusing to exercise jurisdiction. 66 This Court in R v Birdsall (unreported) NSWCCA, 3 March 1997 BC9701099, allowed an appeal by the Crown against an order permanently staying proceedings on an indictment where the allegations related to sexual misconduct over a period between 1961 and 1967. The subject matter of the charges had first been drawn to the attention of the police in mid-1995. The respondent was charged in December 1995. In that case Grove J said, at [4]: "It is trite to observe that there is no limitation period for the prosecution of crime at common law and it is not suggested that any statutory limitation has been legislated in respect of the charges upon which the respondent has been arraigned. Attention has been drawn to the inhibitions upon the exercise of inherent power to stay prosecution and it is clear that in general terms, before any such order should be made, the applicant for stay must demonstrate that this disadvantage or prejudice likely to be suffered would be in the relevant sense unacceptable, that is to say, would be such as to render the proposed trial unfair. There was no evidence before his Honour upon which to draw in order to reach such a conclusion except the time span.

… All the submissions accumulate into a proposition that right thinking people will regard the administration of justice as having been brought into disrepute if these matters proceed. The proposition infers the application of an undefined period of limitation without further circumstance but there is no warrant for implying this." 67 In Birdsall the primary judge dealt with the application for a permanent stay in a somewhat peremptory fashion. After being supplied with the complainants' statements (but without any evidence as to the prejudice to which the respondent was said to be subject) he directed that the proceedings be permanently stayed observing: "I do that for the record primarily because of the antiquity of the Crown [case]".

Birdsall was decided upon the basis that there had been no finding that a trial on the proposed indictment would necessarily be an unfair one. 68 In determining whether by reason of delay a point has been reached such that any trial would necessarily be unfair the Court looks to evidence of actual prejudice in the conduct of the defence. That evidence is considered in the light of the powers of the trial judge to relieve against such unfairness. These powers include giving appropriate directions, including warnings, to the jury; rulings as to the admission of evidence; and control of the procedures of the court generally. The majority in Jago accepted that it will not always be possible for the trial judge to protect an accused against an unfair trial by these mechanisms. The evidence of prejudice relied upon by the applicant 69 The applicant relies on the death of four potential witnesses - (i) the complainants' father, (ii) Uncle Harry, (iii) Jim Taylor and (iv) David Stynes, the Swan Hill pharmacist. He also points more generally to the inability to locate other unnamed potential witnesses such as residents of Darnick as at 1966 and to the loss of records such as the customer account records maintained by the Soul Pattinson pharmacy. Together, the loss of this potential body of evidence is relied upon as establishing prejudice to the applicant in the conduct of his defence such as cannot be adequately addressed by the directions propounded by the High Court in Longman v The Queen (1989) 168 CLR 79 at 91 and Crampton v The Queen [2000] HCA 60; 75 ALJR 133, [130] & [140].

70 The suggested evidence which Harry, Jim Taylor and David Stynes might have been able to give is to my mind somewhat peripheral to the issues between the Crown and the applicant in this case. 71 The counts in the indictment, which charge offences as occurring at the Ivanhoe property, are those involving the attempted carnal knowledge of SML in the bathroom and (on one occasion) behind the outdoor toilet. At the committal hearing SML said that most of the sexual activity took place in the bathroom. She went on to say that it sometimes occurred on the verandah (10/2/99 p74). She was not asked (and did not say) when in the period during which she stayed at the Ivanhoe property any sexual misconduct on the verandah occurred. In her statement SML said that she was sleeping on the verandah in late 1966. Harry did not live at the Ivanhoe premises after April 1966. 72 The applicant and his wife both state that there was no lock on the bathroom door at the Ivanhoe home. SML does say that the applicant locked the bathroom door. It is her account that the applicant would close the bathroom door and hang a towel over the keyhole before interfering with her. 73 It is common ground that there were beds on the verandah of the railway house at Darnick. As I have noted above, the applicant's wife says that her brother was the only one of the children to sleep out on the verandah. Jim Taylor, who died in a motorcycle accident in the late sixties or early seventies, might have been able to confirm that RPL did not sleep on the verandah of the railway house in Darnick. 74 Even if these allegations had been reported to the police in a more timely fashion it may well be that Jim Taylor would not have been alive at the time of trial. It happens that witnesses die or are otherwise unavailable in cases not attended by delays. This does not give rise to a conclusion that any trial thereafter will necessarily be unfair; Regina v Tolmie (unreported) NSWCCA, 7 December 1994; Regina v McCarthy (unreported) NSWCCA 12 August 1994. 75 Generally, it is said that the applicant has been deprived of the opportunity of locating witnesses who lived in Darnick in 1966 and who might have been able to confirm that the girls did not sleep on the verandah. Residents of Darnick might also have been able to support the applicant and his wife in saying that water tanks were not left lying on their side adjacent to either the Post Master's residence or the railway residences.

76 The loss of witnesses such as Harry, Jim Taylor and the pharmacist from Swan Hill (and the inability to pursue inquiries of the residents of Darnick to see if other witnesses helpful to the applicant's case might be located) seems to me to fall short of amounting to prejudice that cannot be overcome by direction. The directions that the trial judge will be required to give in conformity with Longman and Crampton include that after the passage of so many years the complainant's evidence cannot be adequately tested and that it would be dangerous to convict upon it alone.

77 The loss of the evidence complainants' father is of somewhat greater significance since on the account given by SML the circumstances in which she sought to leave the Ivanhoe property around Easter 1967 were memorable. Mr Toomey submits that the exchange described by SML with her father at Easter 1967 is one that, had it happened, would have prompted the father to inquire what was wrong. It is not suggested that he did so. It is not known what evidence the complainants' father might have given. For present purposes, I assume that it would have been evidence that assisted the defence. 78 In Regina v VPH (unreported), 4 March 1994 NSWCCA, the appellant appealed against the refusal of the trial judge to permanently stay proceedings on an indictment relating to allegations of sexual abuse said to have occurred a number of years earlier. He pointed to the circumstance that his wife was no longer alive. She would have been expected to have been in a position to have described aspects of their domestic routine inconsistent with the occurrence of the allegations. Gleeson CJ (in a judgment with which Newman J and Sully J agreed) said: "The material that was before Judge Armitage indicates that in a number of respects she would deny that certain circumstances alleged by the children to have surrounded acts of sexual abuse, ever existed in the way in which the home was conducted. It is in my view plainly the fact that if the appellant's wife had been available to give evidence, then there are a number of matters upon which she could have given material evidence in support of the defence case. On the other hand it has to be borne in mind that, as I have mentioned earlier, she is in a number of respects alleged to have been an accomplice of the appellant in relation to certain acts of cruelty. I am prepared to accept that it is a significant disadvantage to the defence case that the evidence of the appellant's wife is unavailable. It is, of course, by no means uncommon that, for one reason or another, even in cases where there has been no delay, an accused person has to suffer the disadvantage of the unavailability of a witness whose evidence would otherwise have been of assistance." 79 In R v Goldburg (unreported) NSWCCA 23 February 1993, this Court refused to grant a permanent stay of proceedings on indictment in a case where it was said that an alibi witness was no longer available. Mahoney JA accepted for the purpose of dealing with the application that the witness's absence would diminish the accused's chance of succeeding upon his alibi defence. His Honour went on to observe: "The mere fact that a witness who would otherwise have been available has died or otherwise becomes unavailable does not warrant the granting of a stay of proceedings." 80 I am not persuaded that Judge Goldring erred in concluding that the evidence of lost witnesses and/or documents was not such as to lead to a conclusion that the trial of the applicant after this very lengthy delay will necessarily be unfair.

81 In Regina v Littler [2001] NSWCCA 173; 120 A Crim R 512 this Court allowed an appeal against a trial judge's refusal to permanently stay proceedings on indictment. In that case the appellant was aged seventy-four years. There was medical evidence as to his general state of poor health and as to his memory difficulties. The events, the subject of the indictment, involved allegations of sexual misconduct against two boys said to have occurred some thirty eight to forty six years prior to the date of trial. In that case it was held that the primary judge erred in the approach he took to the medical evidence of impairment to the applicant's memory.

82 In Littler Hodgson JA (with whom Greg James J agreed on this aspect) said at paragraphs 5, 6 and 7: "As shown by Jago v District Court (NSW), a permanent stay is a remedy of last resort, only used in most exceptional circumstances, where any trial would involve such oppressive unfairness incapable of being overcome, that it would be an abuse of process. In my opinion, an applicant for such an extraordinary remedy bears a heavy onus, and, if not unfit for trial, should normally be prepared to state on oath what he or she says would be the particular difficulties he or she would face in dealing with a trial of the charges brought. In expressing this opinion in relation to this application, I have regard not only to the public interest in having a determination of the guilt or innocence of a person charged with serious offences, but also the interests of persons claiming to have been severely damaged by the alleged actions of the applicant. These actions, if they occurred, would have been done in circumstances where early detection was unlikely, and where there was a real possibility that complainants may be willing and able to bring complaints only many years later. In this case, complainants have now come forward, and made statements which, if true, both indicate most serious and damaging criminal activity and also make it understandable why there has been so much delay, at least until 1994. For myself, I would feel a sense of injustice to complainants such as these if a person charged with such offences could apply for and obtain a permanent stay, on the grounds such as those relied on in this case, without going so far as to state on oath what he says are his difficulties in dealing with the allegations." 83 Hodgson JA and Adams J (in judgments with which Greg James J agreed) placed emphasis on the evidence as to the applicant's memory deficiencies as depriving him of the opportunity to recall events which may be of significance to his defence to the charges but which would not, of themselves, have been notable events in his life. Adams J observed at Para 38: "The second significant matter of prejudice, which I have already referred to in passing, concerns the effect of delay on the applicant's ability to remember with reasonable reliability what I might call the contextual facts of the alleged occurrences. These comprise not only the possible presence of significant witnesses to some of the alleged offences or the alleged surrounding circumstances, but also the actual timetable of activities and responsibilities undertaken by the applicant and his relationship, if any, with the complainants. To make a rather obvious point, if the applicant had committed the alleged offences, it seems likely that he could remember doing so, at least in general terms (though it is important to note that specific offences are alleged). If, on the other hand, he did not commit the alleged offences, then his knowledge and recollections about the complainants, his interactions with them, and the surrounding circumstances, might well be extremely vague. The mere fact that the applicant remembered what university he went to, when he started teaching, what he taught at Westmead and other such matters would not justify the inference that his recollection of contextual facts was likely (as distinct from possibly) to be good."

84 The applicant swore a second affidavit on 16 March 2001. To this he annexed various medical reports. From that material it appears that he was admitted to the Beaudesert Hospital on 11 June 1998. The report of Dr Glover, the Medical Superintendent of the Beaudesert Hospital, sets out the history given by the applicant on admission. While driving his concrete tanker the applicant experienced an episode of dizziness, such that he had to stop driving for a time. Following this he had become confused and got lost while trying to drive home. He was amnesic for some events of the day. On arrival at the Hospital he was no longer confused but he continued to be amnesic for some events. He was admitted to hospital for observation. He gave an account of recurrent dizzy episodes in the weeks leading up to 11 June 1998. Some of these were associated with short-lived palpitations. He felt he was under a lot of pressure at work and noted that he worked long hours with no breaks. He consumed four litres of iced coffee daily. 85 Dr Glover reported that the diagnostic possibilities included a minor cerebro vascular incident or a reaction to a combination of sleep deprivation, stress and excessive caffeine intake. 86 Dr Proudman, a family practitioner, in a report dated 17 August 1998 stated that he had seen the applicant on 16 June 1998. On that occasion the applicant's physical examination was normal. The applicant was vague concerning the events that had led to his earlier hospital admission. Dr Proudman stated: "The likely diagnosis is temporary ischaemic attack, although underlying anxiety and insomnia are no doubt contributory to the episode on 11 June 1998; I understand that RWO was admitted to the Beaudesert Hospital on 11 June 1998 and I believe he was an inpatient for three days. Follow up appointments were made at the Logan Hospital for CT scan of head and carotid artery duplex. These demonstrated no significant abnormality; Any memory difficulties experienced by RWO seemed to be related to the events leading up to his hospitalisation on 11 June 1998. To my knowledge RWO does not suffer from any significant medical condition." 87 Dr De Wytt, a neurologist, in a report dated 26 October 1998 noted that the applicant's confusional state following his admission to the Beaudesert Hospital had resolved over the next twenty-four hours, although he remained amnesic for some of the events and continued to experience memory difficulties. Dr De Wytt stated: "RWO has not had any further confusional episodes but has noted that he has to think carefully before performing previously automatic actions such as pumping, and takes longer to do his work. He has also noted some slurring of speech and word confusion and described difficulty recalling significant past events such as his wedding day. … The events of 11 June 1998, as described by RWO are consistent with transient global amnesia, the cause of which has not been established. Transient global amnesia is an acute condition with amnesia for events experienced during the acute episode only. Persisting memory difficulties suggest that permanent damage (brain infarction) has occurred in the temporal lobes. There is no evidence of brain infarction or other intra cerebral pathology on RWO's CT head scan although the findings on EEG would be consistent with previous ischaemic damage. His mini mental state examination score was within the normal range, thus excluding a global decline in cognitive function. However a detailed neuro-psychological assessment is necessary to document the full extent of RWO's current memory difficulties."

88 In neither of his affidavits does the applicant identify particular memory difficulties associated with the events surrounding his courtship of his wife or their early married life together at the Ivanhoe home. He does refer to the difficulty of recalling the precise terms of conversations that have significance to his defence in the light of the allegations now made. Equally, he says because of the passage of time he is not able to recall precisely who was present at the time of these conversations.

89 To my mind the evidence does not establish that the applicant's memory difficulties are such that to try him now in respect of events that occurred so many years ago would be unfair. In Littler Adams J noted that the loss of recall of unremarkable "contextual facts" may be a source of real difficulty to the conduct of an accused's defence. The applicant in that case was a member of staff at the Westmead Boys' Home at the relevant time. The allegations were made by former students. As Adams J observed the interval of time made it difficult for the applicant (assuming him not to have committed the offences) to recall the complainants and what, if any, contact he had with them. The present case does not seem to me to give rise to quite the same considerations. This is not to say that the applicant's memory of the incidents of domestic life is not likely to have been impaired by the passage of well over thirty years. A direction in the terms set out in Longman and Crampton acknowledges the difficulty that an accused faces in seeking to meet allegations brought many years after the event. Contamination of the evidence

90 In Mr Toomey's submission Judge Goldring failed to appreciate that the prejudice to which the applicant was subject arose from the loss of evidence when viewed in combination with the "contamination" of the evidence of the complainants. They had "rehearsed' their allegations in the course of repeated family discussions. He noted that RPL first spoke to her sisters about the applicant's alleged sexual interference some time after 1969. Thereafter she had spoken with her mother and sisters on this topic on numerous occasions. The statements of two complainants were made in December 1997 after, perhaps, as long as twenty-eight years of familial discussion. Mr Toomey developed his argument, observing: "You have the presumptive prejudice to the very great length of time. The failing of memory over thirty years combined with it. You might be dealing with a few occasions or a short period of time. That can usually be sorted out because you are trying it two years later and you can say, 'What did you say to them and what did they say to you?' That is impossible to be sorted out when you have thirty occasions over twenty-five years. The quality of it is completely different."

91 It is necessary to identify the dangers of the "contamination" of the evidence to which Mr Toomey refers. One danger is that if the allegations of both complainants are heard together the jury might reason that the evidence of one receives support from the evidence of the other. In a case where the Crown cannot exclude concoction as a rational explanation for the fact that more than one complainant makes allegations of sexual misconduct against the accused the evidence of one is not admissible in the trial of the other. In such a case the trial judge should order that there be separate trials: Hoch v The Queen (1988) 165 CLR 292. 92 Each of the complainants discussed the subject matter of her complaint with the other and with other family members (including other sisters who made similar allegations) over a period of many years before reporting the matter to the police. In these circumstances it is not suggested that the Crown would seek to lead the evidence of TML, LJL, or of one complainant in the trial of the other as evidence of the applicant's tendency to deal sexually with young girls. There exist strong grounds to order separate trials in this case.

93 As I understand Mr Toomey's submission, even if the trials are separated the applicant faces difficulty in adequately testing the evidence of the complainants since each has been telling her story within the family context (and in the case of SML, to health professionals) for many years. 94 It is frequently the case with sexual offences said to have occurred when the complainant was young that the matter will not be brought to official attention for a long time. It is not uncommon for the complainant in the interim to have spoken of the matter to one or more confidants and/or to health professionals. It does not seem to me that this consideration produces the result that any subsequent trial would necessarily be unfair.

95 At trial each of the complainants will give evidence of what it is that she says the applicant did to her. It is the applicant's case that the allegations are untrue. Whether defence counsel seeks to challenge the complainant (assuming the trials are separated) by a cross examination which elicits that others in the family have been moved to make allegations of sexual misconduct against the applicant and that there has been a deal of discussion on the topic is a matter for forensic judgment. In any case where a number of persons within a family (or a school or sporting association or the like) make allegations against an individual difficult questions may arise as to whether to open that the allegations form part of some wider pattern of complaints (the suggestion being that either maliciously or innocently the allegations made by the complainant have been infected by the accounts of others).

96 In these cases the evidence of RPL and SML is not corroborated. Mr Toomey submitted that a further aspect of the prejudice to which the applicant was exposed by reason of the delay was that he would no longer have the benefit of the directions to the jury that were conventionally given in trials of sexual charges in the 1960s and 1970s. In this respect he referred to the direction formulated by Barwick CJ in Kelleher v the Queen (1974) 131 CLR 534 at 542 as an appropriate one to be given in a sexual case where the evidence of the complainant was uncorroborated. This direction included that it was open to act upon the complainant's uncorroborated account but that the jury should exercise considerable caution in so doing because of the ease with which such charges are made and the difficulties which may attend their rebuttal. This submission was allied to one in the applicant's written submissions, namely, that Judge Goldring failed to appreciate the effect of the abolition of the corroboration rule brought about by s 164 of the Evidence Act 1995. These submissions were not to the fore in the way Mr Toomey put the applicant's case. I would reject them. 97 In Rodway v the Queen (1990) 169 CLR 647 the High Court observed at 521: "But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of the trial. The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying, as did Mellish LJ in the passage cited by Dixon CJ in Maxwell v Murphy ((1956-1957) 96 CLR 261) that no one has a vested right in any form of procedure." 98 At the trial of these allegations the trial judge will be required to warn the jury in unmistakable and firm terms that after such delay it would be dangerous to convict on the evidence of the complainant alone, unless the jury, after scrutinising it with great care, and considering all the circumstances relevant to its evaluation and paying heed to the warnings given were satisfied both of its truth and accuracy. Such a warning will need to direct attention to the fact that after such a very great delay the applicant is not able to adequately test the evidence of the complainants and that he has been deprived of the opportunity to adduce evidence which may have thrown doubt on the complainant's account or tended to confirm his denial. It will be appropriate for the trial judge among other things to draw attention to the absence of timely complaint, the fragility of childhood recollections and to the possibility of distortion: Longman; Crampton; Regina v BWT [2002] NSWCCA 60; Regina v JBV [2002] NSWCCA 212; Regina v SJB [2002] NSWCCA 163.

99 In the written submissions filed before the hearing of the appeal the applicant contended: "The evidence before Judge Goldring made it plain that the complaint did not come from either of the complainants but from the complainants step-father. The applicant contends that if an abuse of process is properly so identified then it was unnecessary for Judge Goldring to be satisfied that an unfair trial would ensue unless the prosecution was stayed; Barton v The Queen (1980) 147 CLR 75; Williams v Spautz (1992) 174 CLR 509. 100 The applicant submits that the prosecution of these charges is oppressive by reason of the fact that the two complainants have throughout their adult lives spoken openly within the family of their allegations. They chose not to report their allegations to the police. The decision to initiate the police investigation into these complaints was not made by the complainants but by their stepfather. He appears to have been prompted to do so because of his wife's distress over SJO's refusal to speak with her.

101 In Williams v Spautz Mason CJ, Dawson, Toohey JJ said at 519: "If a permanent stay is sought to prevent the accused from being subjected to an unfair trial, it is only natural that the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed. In other words, the court must be satisfied that there are no other available means, such as directions to be given by the trial judge, of bringing about a fair trial. Jago was such a case. Consequently, the judgments in that case gave emphasis to the necessity that the Court should satisfy itself upon this point before granting the relief sought. If, however, a stay is sought to stop a prosecution that has been instituted and maintained for an improper purpose, it by no means follows that it is necessary, before granting a stay, for the court to satisfy itself in such a case that an unfair trial will ensue unless the prosecution is stopped. There are some policy considerations that support the view that the court should so satisfy itself. It is of fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences, and that persons charged with such offences should not obtain an immunity from prosecution. It is equally important that freedom of access to the courts should be preserved and that litigation of the principal proceeding, whether it be criminal or civil, should not become a vehicle for abuse of process issues on an application for a stay, unless once again the interests of justice demand it. … In our view, the power must extend to the prevention of an abuse of process resulting in oppression, even if the moving party has a prima facie case or must be assumed to have a prima facie case. Take, for example, a situation in which the moving party commences criminal proceedings. He or she can establish a prima facie case against the defendant but has no intention of prosecuting the proceedings to a conclusion because he or she wishes to use them only as a means of extorting a pecuniary benefit from the defendant. It would be extraordinary if the court lacked power to prevent the abuse of process in these circumstances" (At 522). 102 It may be that neither RPL nor SML would have approached the police but for the actions of their stepfather in drawing their complaints to the attention of the police. For present purposes let it be assumed that the stepfather's actions in reporting the matter to the police flowed from his concern about his wife. These matters would not ground a contention that the proceedings had been brought, or were being maintained, for some improper or collateral purpose. 103 It is common for complainants in sexual cases not to report the matter to the police promptly or at all. Misplaced feelings of guilt and the dynamics of the family may mitigate against a report to the authorities in these cases. In Regina v Lane (unreported) full Fed Ct, 19 June 1995, Wilcox J observed: "Both the everyday experience of criminal courts and the reported cases demonstrate that it is commonplace for there to be a substantial delay in the reporting of alleged sexual assaults, especially where the complainant is a child. Without saying anything about the facts of this case, which have not been investigated, it seems that many sexual assault victims are unable to voice their experience for a very long time. To adopt a rule that delays simpliciter justifies a stay of criminal proceedings would be to exclude many offences, particularly offences against children, from the sanctions of the criminal law." 104 It is not clear from the judgment of Judge Goldring that this challenge (that the continuation of the proceedings was oppressive they having been initiated after very lengthy delay by the complainants stepfather after the applicant's wife broke off contact with the family) was a matter agitated before him. It is not articulated in the thirteen grounds of appeal filed in support of the application, unless it is encompassed within the terms of the third ground: "Failing to find that the continued prosecution of the appellant in all the circumstances is exceptional and gives rise to incurable unfairness, oppression and injustice."

105 I do not consider that the applicant has established that Judge Goldring proceeded upon any wrong principle of law, or that he took into account any extraneous or irrelevant consideration or that he must be taken to have erred in determining the matter in the way that he did. Thus, it may not be necessary to consider the ground now taken that the proceedings are oppressive because they were commenced for a collateral purpose. However, since the matter was fully argued I record my view that the evidence does not disclose that the proceedings were commenced for some improper or collateral purpose. Whatever may have prompted the complainants' stepfather to draw the subject matter of their complaints to the attention of the police, the complainants cooperated with the police and provided statements for no suggested purpose other than the prosecution of the applicant for the offences that they allege he committed.

106 The only remaining matter raised by the applicant's grounds of appeal was not developed by Mr Toomey in the course of oral argument. This ground contends that Judge Goldring took into account an extraneous or irrelevant consideration, namely, the discretion which reposed in the Director of Public Prosecutions pursuant to s 7 of the Director of Public Prosecutions Act 1986 to determine that no bill be found (reasons for judgment 15) and declined to exercise his own discretion because he was conscious that a prosecutorial discretion might still be exercised in favour of the applicant. 107 The passage complained of in his Honour's reasons occurs in the context of observations that he makes concerning the judgment of Hunt CJ at CL in R v Tolmie (unreported) 7 December 1994. Judge Goldring said at p 15: "However, his Honour did say something which I consider to be extremely pertinent to this case, and he said this at pages 8 to 9, 'that view', that is the view that led him to refuse the stay: "should not, however, be construed by the Director of Public Prosecutions as absolving him from considering whether the prosecution should proceed as a matter of prosecutorial discretion. About that issue I say nothing at all." And, I think, that captures the spirit of Jago ." 108 Read in the context of the reasons as a whole I do not accept that Judge Goldring erred in the manner alleged. There is nothing to suggest that he failed to exercise the discretion that vested in him in accordance with the principles set out in Jago to which he made extensive reference. I take his Honour to be adopting the observations of Hunt CJ at CL R v Tolmie (unreported) NSWCCA 7 December 1994 namely, that the refusal by a court to grant the exceptional relief of a permanent stay of proceedings does not absolve the Director of Public Prosecutions of exercising his prosecutorial discretion in determining whether to find a bill. In this latter respect the considerations to which the Director may properly have regard are different to those with which the court is concerned on an application for a permanent stay and include the likelihood of conviction.

109 The orders that I propose are that leave be granted to bring the appeal, but that the appeal be dismissed. 110 SMART AJ: I agree with the reasons of Bell J. **********

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