The indictment contains 11 counts, alleging that the offences occurred between 19 March 2001 and 09 May 2016 in relation to 6 complainants:
1. KP (count 1 on indictment)
2. SW (count 2 on indictment)
3. CN (count 3 on indictment)
4. CH (counts 4-7 on indictment)
5. MS (count 8 on indictment)
6. KT (counts 9-11 on indictment)
The matter was set down for trial on 02 February 2018, to commence on 12 November 2018 with an estimate of 12 days.
On 28 September 2018, the matter came before Price J for a readiness hearing. According to Mr Seeney, counsel for the Applicant advised the Court that any potential tendency notices would be challenged and that the Applicant would be seeking severance of each of the complaints on the indictment. [11]
On 9 October 2018, the Crown filed a notice of the prosecution notice and served the same on the Defence by email. [12] On 18 October 2018, Kimberley McKenzie, sent by email the Crown's tendency notice. On 29 October 2018, Ms McKenzie forwarded an email serving the Crown's coincidence notice. [13]
Although the relevant tendency notice has not been annexed, I have been informed that it relates to acts involving complainants JP, AB and HF in respect of allegations said to have occurred in 2004, 2006 and 2014.
Mr Seeney gave evidence that on 12 November 2018 at 8:55am, he received an email from Ms McKenzie disclosing that the Crown had been notified that on 09 November 2018 some of the complainants may have been in contact with each other via an internet group chat. The text of the letter is as follows:
Dear Mr Seeney,
On 9 November 2018, NSCP Linda Barnes with her instructing solicitor, Kimberley McKenzie was informed of the following information from Witness Assistance Officer, Susan Wood.
Approval has been granted that privilege is waived on the limited basis of the below;
1. That [KT] and [HF] both have six month old children and were in the same baby class in Gosford and have spoken about the matter.
2. There was an internet group chat between KT and HF and another complainant believed to be MS around the same time.
3. It has been made clear to the complainants that they are not to speak to others about their statements and to not look at the group chat. [14]
The matter was mentioned before Syme DCJ on 12 November 2018, at which point counsel for the Applicant indicated that the abovementioned email had been received. The matter was then stood down to 11:00am. According to Mr Seeney, during the break the Crown advised that it was their understanding that the "internet group chat" occurred after the Complainants had made their statements to police. [15]
At 10:45am, Mr Seeney forwarded an email to Ms McKenzie requesting particulars. [16] At 11:00am the matter was again mentioned before Syme DCJ and by consent, the matter was adjourned to 13 November 2018.
At 12:13pm Mr Seeney received from Ms McKenzie redacted copies of Facebook messages between KT, MS and HF. [17] At 4:02pm, a further email was sent to Ms McKenzie seeking further particulars. [18] At 4:12pm another email requesting additional particulars was sent by Mr Seeney. [19]
On 13 November 2018 the matter was again mentioned before Syme DCJ. On that occasion, her Honour indicated from the outset, that the trial being estimated 3-4 weeks, would lose its position in the list if the matter was not in a position to start that day. [20] The matter was thereafter stood down to 12 noon.
At 11:45am on 13 November 2018, Ms McKenzie sent an email to Mr Seeney serving the additional statements of HF, KT and MS, which contained copies of text messages and other partially redacted Facebook messages. The correspondence also provided further details of the interaction between the Complainants and the WAS Officer and that a statement had been requested from Detective Senior Constable Wyborn, [21] The relevant statements were annexed to Ms McKenzie's affidavit. [22] Also annexed to Ms McKenzie's affidavit is a statement of Detective Senior Constable Alison Wyborn dated 12 November 2018. [23] In her statement, Detective Senior Constable Wyborn states:
11. Monday the 12th of November 2018 is the first I knew of the group chat between [HF], [KT] and [MS]. I was aware that mutual friends of [HF], [KT] and [MS] had encouraged them to contact the Police however when I spoke with the girls, they were reluctant to provide their details so I did not ask any further questions. I did not know of the Facebook Messenger chat. [24]
When the matter was re-mentioned on 13 November 2018 Defence counsel indicated that three further statements had been served upon the Defence, being two statements from Complainants on the indictment, and one tendency witness. [25] In the absence of the Crown representative, the matter was further stood down. When it was re-mentioned, counsel for the Crown indicated that various further group chats and statements had been provided to the Defence but acknowledged that the later needed time to read them. Syme DCJ contemplated the course to be followed and anticipated that the matter would not be ready to proceed.
Counsel for Crown stated:
The Crown's preference would be tomorrow morning, we can get all of the information through and then we can assess where we're at tomorrow morning. In terms of the male witness, he can't be located at the moment, so it will not be something as I understand it forthcoming. [26]
Syme DCJ indicated that there was no prospect of the trial starting on 14 November 2018 and told the Crown not to call its witnesses in. [27] Her Honour reiterated this to Defence counsel. [28] Counsel for the Applicant raised the suggestion that the matter be placed in the list for Friday 16 November 2018, so that a new trial date could be sought. Her Honour, at that point, stated:
Let me put it this way, if the matter doesn't start tomorrow then it won't be starting because you will be pushing up against the end of term and it's not going to happen. I think everybody has been involved in juries sitting over Christmas time, it doesn't work, it just doesn't work. The question is, who's making the application to vacate the trial, when should we hear that, perhaps we should hear it tomorrow? [29]
Counsel for the Applicant thereafter stated:
"… Can I herald this, that I would regret having, bearing in mind this has been thrown over from the Crown's side of things and no blame is cast, I'm not seeking to do that at all, I regret having to make the application, I would welcome that the Crown make it. Bearing in mind your Honour that its material that has come from the Crown. I note, your Honour, that this is a privately funded matter and I would like to protect my client's interests in that regard." [30]
The matter was thereafter adjourned to 14 November 2018 at 2:00pm.
On that time, the Crown made no application for an adjournment. The Crown indicated that there was one witness that the Crown could not locate and could not do anything about, but otherwise they had "served everything". [31] Thereafter, a discussion ensued in which her Honour was informed about various investigations which the Defence proposed to undertake. The transcript records:
HER HONOUR: On that basis I will make a decision and make a ruling that the matter is not ready for trial at this stage. There are further investigations that the defence need to undertake, as a result of the Crown being - coming into possession of what appears to be late evidence. [32]
[2]
Communications between Complainants
The contact between MS and HF had commenced on 5 April 2016 after MS's boyfriend responded to a Facebook post inserted by HF relating to the Applicant.
The material discloses that subsequently on 08 August 2016 a group chat was created by MS, with HF and KT, called "Girl power!" In it, HF initially states:
HF: I know how scary this all is girls but you two have each other to lean on throughout this all. I can come to the police station with you guys as a support person but nothing else, my matter was already dismissed and unless the bring me back into it as a previous victim or something along the lines just to prove he's done it before I'm just going to be there for you guys
On 10 September 2016 an email was sent by MS to Detective Senior Constable Wyborn prior to MS making a complaint statement on 13 December 2016. The email reads:
My name is [MS], recently you spoke to a girl named [HF] and you told her you wanted myself to contact you so that is why I am emailing you
After that email of 10 September 2016 the following message from MS to KT was sent on 12 September 2016 at 4:01 pm:
"A few days ago a detective showed up at HF's house to tell her that They are taking [RM] to court on Tuesday (tomorrow) and that they wanted [HF] to go in and give her statement again. HF mentioned that there is two others that have been victims and the detective has asked HF to give her detail to us, I wrote her a statement basically in my email. Could you please do the same ? Or even just call her? I believe email is best. I was just on the phone to her after she read my email and she asked me if it's okay to go in at some point (her and I will be arranging a date soon) and give her a proper statement to get him charged xx"
On 14 September 2016 in the group chat at 4:49pm the following conversation appears:
MS: I just saw anne!
HF: I WISH I SAW HER WTF
On the same day commencing at 5:08pm the group chat records the following:
MS: Shes so grumpy
KT: OMG FR? I suggested to the detective that she's been paid off to say what she did in your case [HF]
HF: You can't mention that in your statement!!! You're not allowed to know about my case at all
KT: I won't I know
HF: Okay goooood, what detective did you talk to ?
KT: It was more of an offhand remark and the detective agreed
Wyborn …
Thereafter at some time after 6:53 pm the following appears:
KT: When I see y'all in person I'll tell you something
I won't say it online bc I don't want it traced
MS: Oh shit okay
KT: Otherwise
Yeah he's a sick, filthy scum
MS: You're a tease [KT]
KT: I try (emoji)
MS: hahhahaha
HF: Ooooohhhh I wanna know
MS: Me too (sad face emoji)
KT: Sorry girls aha
It's not something I'd like to have traced in any way
HF: Okay okayyyyy
Oi yeah actually gals let's delete
MS: Yeah thats fair
KT: It can still be traced
Even deleted
MS: Yepp
KT: All thy need to is put in for an iask and they'll get the info
MS: Pardon?
KT: Realistically though, we've not conspired, I think deleting it would look suspicious and all we've really done is share feels and experiences and it's not as though we've conspired to get our story straight
The detective mentioned that it's the same story over 15 years, so I doubt it would hold any significant effect considering we don't know any of the other women it's happened to over 15 whole years * shrugs*
HF: I don't think they'd go to the effort tbh. All he's going to do is say it never happened, he wouldn't bother trying to say we're trying to frame him or something because it's gone on for years
KT: Police can send a request, I believe its called an "I ask" it's to get information of things posted online.
MS: I totally agree
HF: Far out I hate him so much
On 16 October 2017 the group chat discloses:
MS: P.s Were either of you contacted by detective alison wyborn and asked to go to court next year?
…
KT: & yes
She wants me to update my statement & be more specific
…
HF: He gals, she called me too. I don't know if I really wanna go tho cos she said around march and I'll definitely be massively pregnant by then and idk how good it will be to be that stressed out while that pregnant. But thanks gall
…
[3]
Submissions
The Applicant draws attention to the fact that attached to the statement of MS served 13 November 2018 was an email dated 10 September 2016 by MS to Detective Senior Constable Wyborn the contents of which I have earlier referred to.
The Applicant submitted that the said email made it obvious and implicit that Detective Senior Constable Wyborn was aware, as at 10 September 2016, that there had been contact about this matter between MS (who had yet to provide a version of events to police) and HF. The contact was said to be known to Detective Senior Constable Wyborn by way of this email, but not disclosed to the Defence. No submission was advanced on the basis of the content of the other messages and group chat conversations. In particular no submission was advanced asserting that they may have disclosed knowledge on the part of Detective Senior Constable Wyborn as to the extent or content of the contact. Nor was Detective Senior Constable Wyborn requested for cross examination.
It was contended that it was only through inadvertent disclosure to the Witness Assistance Officer that contact not only between MS and HF, but contact between the trio of MS, HF and KT, came to light. In this context it was submitted that either Detective Senior Constable Wyborn did not appreciate the significance of the earlier contact or she was attempting to keep the information suppressed. The Applicant submitted:
The importance of contact between these three cannot be overstated. [MS] obviously (from her email) had contact with HF well prior to detailing her complaint to police. It is now known, via this inadvertent disclosure to the WAS officer, that KS had contact with HF and MS well before detailing her complaint to police. [33]
Accordingly it was submitted that the Application should be granted for the following reasons:
1. It is unfair that the Applicant should have to meet the costs thrown away as a result of the Crown's conduct, particularly in light of the knowledge of Police in charge of the investigation as a 10 September 2016. Detective Senior Constable Wyborn's statement of 12 November 2018 makes no mention of the email that she received from MS on 10 September 2016, but was aware that "mutual friends" of HF, MS and KT had encouraged them to contact police.
2. Consequent upon the failure of the Crown to thoroughly investigate the issue of contact (relevant to issues of concoction, collusion and influence), and consequent upon the late and incomplete service of material related to that issue, culminating in the vacation of the trial, the Applicant has incurred costs through no fault of his own.
3. There is nothing to preclude the Court from making an order for a temporary stay of proceedings. [34]
The Respondent submitted that the Crown did not make an application to vacate the trial. The relevant material was disclosed as soon as it became known and available. Further, there is nothing in the email of 10 September 2016 in relation to contact between MS and HF that suggested that Detective Senior Constable Wyborn ought to have known there was a 'group chat' or other communication regarding the case between witnesses. In particular in paragraph 11 of her statement dated 12 November 2018, Detective Senior Constable Wyborn stated that she was aware that mutual friends had encouraged them to speak to police but when the officer contacted them, they were reluctant to speak to police. [35]
The Respondent submitted that alternative courses to enable the trial to proceed were open to the Defence in circumstances where there had been noncompliance with pre-trial disclosure requirements including:
1. Exclusion of evidence under s 146(1) Criminal Procedure Act 1986 (NSW) and
2. Seeking a Basha inquiry.
[4]
Consideration
The "fault" identified in this case was the asserted failure of Detective Senior Constable Wyborn, on receipt of the email dated 10 September 2016, to disclose at an earlier time the contact between MS and HF and to investigate it further relevant to issues of concoction, collusion and influence and advise the Defence. [36]
The allegation involving HF related to an event which was said to have occurred in 2014 leading to the Applicant being charged and ultimately found not guilty. [37] Although HF had been requested to attend on police to update her statement in September 2016 as late as October 2017 she appeared reluctant to further involve herself by giving evidence. No submission was advanced that the content of the contact between the three Complainants disclosed that Detective Senior Constable Wyborn had any reason to know or suspect the contact between them had occurred of the nature and extent now disclosed. This is not surprising as the content of the messages indicated that the participants had a knowledge of the sensitivity of their discussions and a need to keep them confidential.
Each of the Complainants were at one point employed by the Applicant. It is not altogether clear when a decision was made that HF be a tendency witness although I would accept Detective Senior Constable Wyborn was contacting her to update her statement with that that purpose in mind.
In retrospect it is easy to argue that Detective Senior Constable Wyborn should have disclosed the contact between HF and MS at an earlier time.
Nevertheless it has not been demonstrated on the face of the document of 10 September 1986 or elsewhere, that Detective Senior Constable Wyborn did, or had reason to appreciate, any significance in the contact between HF and MS let alone anticipate the events disclosed to the WAS Officer. Certainly there is nothing in the email of 10 September 2016 which would disclose any reason for suspicion on the part of Detective Senior Constable Wyborn that MS and HF, or let alone anyone else, had been involved in untoward contact.
Proceedings were adjourned in circumstances where the Defence indicated that it intended to pursue further investigations of the matters that were drawn to its attention and where the Court itself had no capacity to accommodate further delay in commencement of the trial. Whether the course taken was appropriate is not a matter that requires detailed analysis. The Crown properly disclosed the additional material as soon after it came into its possession and responded to the request for particulars to the extent it felt able to do so. The fact that the Defence did not seek an order for exclusion under s 146 (1) of the Criminal Procedure Act 1986 could be accounted for by the lateness with which the material in question came into its possession and the need for it to consider its position. Similarly the question of the holding and timing of any Basha inquiry is also matter for forensic judgment, as is the perceived need to pursue further investigations.
Whatever be the circumstances that led the Defence to take the course it did, the asserted unfairness is not an injustice for which it can be sensibly be said the prosecuting authorities should be held responsible. To the extent the Crown could be viewed as being at fault I would not regard it as being of a sufficiently serious kind. In my view it has not been demonstrated that the inaction of the Crown as raised by the Applicant was such that it fell within the exceptional circumstances that the authorities referred indicate. What occurred was an unfortunate incidence in the proceedings but does not support the exercise of the power sought to be invoked.
For these reasons the application is dismissed.
[5]
Endnotes
(1992) 28 NSWLR 735.
(1992) 28 NSWLR 735.
(1992) 28 NSWLR 735, 740-1 (Kirby P and Mahoney JA agreeing).
[2003] NSWCCA 41.
[2003] NSWCCA 41, [44].
[2003] NSWCCA 41, [36].
[2007] NSWSC 154.
[2007] NSWCCA 154, [29].
Decision Restricted [2017] NSWCCA 27.
Exhibit 1.
Exhibit B at [7].
Exhibit B at [8].
Exhibit B at [9].
Exhibit B at [12]; Annexure B.
Exhibit B at [13].
Exhibit B, annexure C.
Exhibit B at [16]; Exhibit D.
Exhibit B at [17]; annexure E.
Exhibit B at [18]; annexure F.
13 November 2018, T 2.07-09.
Exhibit B at [20]; Annexure G.
Exhibit 1 at [2]; Annexures A, B and C.
Exhibit 1 at Annexure D.
Exhibit 1 at Annexure D
13 November 2018, T 2.35-.44.
13 November 2018, T 5.11-.14.
13 November 2018, T 5.16-.17.
13 November 2018, T 5.19-21.
13 November 2018, T 5.34-.39.
13 November 2018, T 6.10-.16.
14 November 2018, T 2.03-.06.
14 November 2018, T 4.18.
Applicant's Written Submissions at [39].
R v Fisher [2003] NSWCCA 41 at [44].
Respondent's written submissions at [51]-[52].
Applicant's written submissions at [44]-[45]
Exhibit 1; Annexure 3 at [11].
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 08 March 2019
In R v Mosely [2] an order of costs was made against the Prosecution by the District Court when it sought and obtained an adjournment in a criminal trial when two police officers could not attend as they were diverted to other duties. The Court of Criminal Appeal overturned the costs order on the basis that the District Court had no power to grant it, but substituted that the proceedings be stayed until the costs thrown away by reason of the adjournment were paid. Gleeson CJ specifically found that the adjournment caused "unfair prejudice" to the Respondent unless the Respondent could be given protection in respect of costs. [3]
R v Mosely was followed in R v Fischer. [4]
In that case, Simpson J (with whom Santow AJ and Smart AJ agreed) stated that the exercise of the power was not dependent upon the Crown being in a position of seeking an indulgence. [5] Her Honour then went on to state:
[46] While I consider the distinguishing feature to be of some importance, it is not determinative. It is not here necessary for the Crown to make any application other than, through the usual processes, to have the matter listed for trial. Nevertheless, the court retains a power to control its own processes, and to prevent their being used unfairly. It was unfairness that moved Gleeson CJ to propose the orders he did in Mosely.
Her Honour further stated that there is no requirement for an accused to establish that a further trial in itself would be unfair. [6] Santow JA stated in his judgment:
[7] But the Crown is under no duty to conduct the prosecutions in a grossly unfair fashion. The power of granting a stay against the Crown until wasted costs are paid is to be used only for the rare and extreme case of gross unfairness on the part of the Crown. That is to say, unfairness which, exceptionally, can override the public interest in pursuing a criminal prosecution, though to be weighed against what is the urgency of bringing the case to trial. It is nonetheless certainly not against the public interest that the Crown, as a model litigant, pursue its criminal prosecutions with proper fairness. But to abort a second re-trial in the circumstances of the present prosecution by reason of the Crown's own failure to produce a document, even accepting inadvertence, and then ignore the consequence for the defendant in further wasted costs in so proceeding to a third trial, is unjust and unfair, meriting the description of exceptional circumstances.
In R v Selim, [7] Fullerton J questioned whether the test was as stringent as Santow JA had expressed it. Without deciding the issue, her Honour stated:
[57] … I am content to proceed on the basis that there needs to be demonstrated an identifiable injustice for which it can be sensibly said the prosecuting authorities should be held responsible before a temporary stay is ordered, given that the effect of ordering the stay is to impose on them the costs of previous proceedings before they may be permitted to prosecute again.
[58] I do not proceed on the basis that it necessary for the applicant in this case to establish fault, in the sense of male fides on the part of the prosecuting authorities in their failure to disclose the information complained of, accepting, as I do, that inadvertence or error may be sufficient (see Simpson J in Fisher at [24] and [47]), however I must be satisfied that it is an error committed in discharge of the duty of disclosure, or inadvertence as to the extent to which that duty required production of material to the defence, before relief could be granted. I also proceed on the basis I do not have to be satisfied that there is a causal link between the fact of non-disclosure and the reason for a retrial (R v Ulman- Naruniec). That said however, an explanation for the late disclosure, where it is available, it not without importance given that the nature of the remedy that is sought is an unusual one, requiring me to give due weight to the public interest that is served by the Crown being permitted to bring a person to trial without preconditions being imposed on the right to prosecute, so ever long as this is done without unfairness to the accused…
A similar exposition of the relevant test to be applied was expressed by Ipp JA (with whom Latham and Fullerton JJ) agreed in Petroulias v R [2007] NSWCCA 154 where his Honour stated:
[17] In determining whether a stay should be granted in the exercise of this power, the focus will be on the misuse of the court's process by those responsible for law enforcement. As a general proposition, default or impropriety on the part of the prosecution can, depending on the circumstances, be so prejudicial to an accused that the trial is made an unfair one. The touchstone in every case is fairness. The power is to be exercised only in the most exceptional circumstances. These propositions are taken from Jago v The District Court of New South Wales (1989) 168 CLR 23, in particular, the judgment of Mason CJ at 25 and following, Brennan J at 45 to 47, Deane J at 56 to 58, Toohey J at 71 to 72 and Gaudron J at 74 and 77.
On the facts of that case, the unfairness asserted was that of a juror's failure to disclose that he had been disqualified. His Honour held that was an unfortunate occurrence in the ordinary routine of litigation but was not so extraordinary to justify the exceptional remedy sought. [8]
I would accept the proposition that more than simple fault on the part of the Prosecution is required before a Court can make an order of the kind under consideration. I also accept that the fault does not have to be egregious, but fault of a serious kind. [9]