Court of Appeal (Qld)|2000-10-25|Before: Commission J, Murdo P, Davies JA, Byrne J

THE QUEEN v LAURENCE JOHN SMITH & ANOR [2000] QCA 443 (25 October 2000)

DAVIES JA: On 29 May this year in the District Court in Brisbane the prosecution presented an indictment against the respondent charging him with two counts in identical terms. They were that on a date unknown between 20 January 1969 and 20 December 1969 at Brisbane he unlawfully and indecently dealt with a named girl under the age of 12. He pleaded not guilty on both counts.

Those counts, it was contended by the prosecution, were two of a number of occasions on which the respondent, who was then a teacher, indecently dealt with the child who was then a seven-year-old pupil in the respondent's school class. The only particulars which the respondent could give of count 1 was that it occurred on an occasion on which the complainant had new and tighter underpants than on previous occasions consequently causing the respondent presumably greater difficulty to get his fingers inside the underpants as he did.

The only particulars which were given of count 2 were that after the offence occurred and the complainant returned to her seat in the class she wet her pants. It was contended that both counts, and indeed other interferences by the respondent with the complainant, occurred in similar circumstances in which, during a class quiet reading period, the complainant was asked to come to the teacher's desk to read to him and while the other children were reading to themselves he fondled her first on the outside of her underpants eventually putting his hand inside her underpants and inserting his fingers into her vagina. There was therefore nothing in the particulars which fixed the offences in time other than within the 1969 school year. As appears from the dates alleged in the counts these incidents were alleged to have occurred more than 30 years ago. The first complaints to the police were made in August 1998 following a Criminal Justice Commission investigation. No explanation was given for the failure to complain before then.

Although as I have said the complainant alleged these offences occurred in the classroom in the circumstances which I have outlined sometime during the 1969 school year, it was not suggested that either count was identified more specifically as to time or occasion. It was not asserted that either of the particulars alleged, the wearing of new tighter underpants or the complainant wetting herself after she returned to her seat in class either would have been or perhaps even could reasonably have been known to the respondent. It is possible that the second of these could have been asserted in respect of the first of those particulars but in any event that would only be so on the assumption that the respondent was guilty.

The learned trial Judge stayed the indictment and the Attorney now appeals against the order staying the indictment. Before the learned primary Judge the matter proceeded not on any evidence but on assertions from the Bar table and in particular assertions about evidence and lack of evidence made by Mr Devlin who then appeared for the respondent which were not disputed by the prosecutor and consequently can not be disputed before this Court as

Mr Winn quite properly concedes. That it seems to me is a very unsatisfactory way of determining whether proceedings such as this should be stayed. We are left in the end it seems to me on assertions mostly on the part of the respondent which we have to accept.

Before the learned primary Judge counsel for the respondent raised a matter which he submitted supported the making of the order staying the indictment. When she first complained in 1998 the complainant said that in 1969 she told a school friend of hers what had occurred. The friend in turn told her mother and the friend's mother went to the school and spoke to the principal but curiously this information was never conveyed to the complainant's parents. However the complainant said shortly after this and still in the 1969 school year the respondent suddenly left the school, the inference being that he did so because of the complaint.

It was not suggested on the part of the prosecution that either the school friend or her mother was to be called as a witness or indeed that the complainant could give hearsay evidence of the complaint or its alleged consequence even if she knew as opposed to merely speculated as to what the school friend's mother had said to the school principal.

The respondent's counsel said that his instructions were that no such conduct as alleged had occurred, that no complaint had ever been made to the respondent about any such conduct, that he had not left the school in the 1969 year but that he had been transferred in the ordinary course of events to another school at the commencement of the following school year. However it was asserted and accepted that the respondent's capacity to corroborate his evidence in this respect and consequently the absence of recent complaint to anyone by the complainant was impeded by the fact that school records had been destroyed by fire and that the man who could be identified as the school principal at the relevant time had since died.

No attempt had apparently been made to locate the former school friend or her mother and we were asked to infer the respondent would have been unaware of their identity. The point made in this respect of course on behalf of the respondent was the absence of evidence of this kind reduced the weight of any cross-examination of the complainant upon her failure to make a complaint to the school and upon her assertion if she then made it, that such a complaint was made and secondly it deprives the respondent of the opportunity of adducing evidence that no complaint had been made. In other words there was no recent complaint to anyone.

These, as I have already indicated, were matters which were asserted and accepted by the prosecution below and here and the inference which appears to have been drawn from all of this is that the respondent was left only with his inadequate recollection of what had occurred more than 30 years ago. The other point which was relied on below but considered apparently to have been of less importance by the learned trial judge, though it was referred to, was that although the school premises had not been demolished, they since had been substantially remodelled so it was impossible to say whether or not conduct by the teacher was open to view from outside the classroom or indeed from inside by other pupils but there was no assertion on the respondent's part as to what that was at the relevant time.

In making his order staying the indictment the learned primary judge relied on both of the principal matters to which I have just referred, that is, the failure to give particulars sufficient to assist the accused to identify the occasion to which each of the counts relates and the loss of evidence which might have enabled the accused to damage the complainant's credit by cross-examination and prove in his own case the absence of complaint at any relevant time.

His Honour's reasoning was relied on by Mr Rafter for the respondent in this Court and it was pointed out that there was no explanation for the delay of nearly 30 years before the complaint was made to the police and Mr Rafter referred us of course to the width of the discretion which are reposed in the learned trial Judge in this matter and the consequence of the exercise of such a discretion in an appeal such as this.

The main assertion on the part of the appellant here appears to have been that there was no prejudice to the respondent, assuming he was a teacher in the complainant's class at the relevant time, and that does not seem to be seriously disputed.

Further particularity may not have helped the defence and the absence of particularity does not harm it. Up to a point of course that is true but on the assertions which were made and appeared, apparently accepted, the respondent by the time of trial had been deprived in effect of the capacity to say by lapse of time and the absence of more specific particularity whether in a particular time in that year he may have been doing something other than teaching that particular class.

The absence of particularity, in my opinion, would not have been alone sufficient to justify the granting of the stay. However, two other factors together with that lack of particularity do, in my opinion, preclude the appellant from persuading this Court that it should interfere with the exercise of this very wide discretion at this stage.

The first is the failure to give a satisfactory explanation for complaining to the police for nearly 30 years and the consequent problems which that has caused; and the second, is the factor that some specific evidence which might have been available at an earlier point of time is no longer available.

A complainant who might otherwise have been believed may not have been accepted beyond reasonable doubt had it been shown that her recollection of relevant events, in particular the making of the complainant with the headmaster, was erroneous.

It is possible also that the failure to make such a complaint to school authorities, if it could have been proved, may have been a factor which made her evidence less credible.

In those circumstances, although different Judges may have different views about matters of this kind, it is impossible I think in this Court to point to any legal error made by the learned primary judge in the exercise of his discretion. The added difficulty being as I have already mentioned the curious way in which the matter was determined and the consequence for this Court of being bound to accept the assertions which were made by the respondent's counsel.

THE PRESIDENT: I agree. The granting of a stay in criminal proceedings is an exceptional step. See Jago v. District Court of NSW [1989] HCA 46; (1989) 168 CLR 23. It was a difficult decision in this case whether or not to impose the stay. Many Judges may not have done so but I am not finally persuaded this Court should interfere with the exercise of judicial discretion in granting the stay here for the reasons given by Justice Davies. I agree with Justice Davies that the appeal should be dismissed.

BYRNE J: The facts have been mentioned by Justice Davies.

I have found the appeal a troubling one. The order appealed from permanently stayed an indictment in respect of proceedings which, had they proceeded to trial, could not have resulted in the successful submission of no case to answer at the end of the prosecution case. However, the way in which matters proceeded was unusual. In R v. His Honour Judge Kimmins and Hicks, Appeal No 103 of 1995, 21 June 1996, this Court said:

"An application for a stay is like most other matters in our Courts an adversarial proceeding. The onus lies upon a person seeking a stay, presumably an accused, to place before the Court evidence sufficient not only to enliven the Judge's discretion but also to warrant its exercise."

That course was not adopted in this case. No evidence was adduced in support of the application. As Justice Davies has mentioned, things were said by counsel for the respondent before the Judge upon which the prosecution was content to proceed. There was no insistence that any material facts be proved by evidence on the voir dire.

The consequence was that the contention that the respondent would be prejudiced in his defence were no further particulars provided was an assertion which passed without effective challenge, let alone testing of any evidence that might have been (but was not) called.

In these circumstances, the Judge was entitled, but not obliged, to proceed upon the basis that, in all the circumstances, the absence of further particulars posed a risk of an unfair trial on the footing that the respondent lacked sufficient particularity to enable him to prepare his defence.

Even so I am not at all sure that I would have arrived at the conclusion that the proceedings should be stayed. But at this stage that is not the test. The combination of circumstances to which Justice Davies has referred was, I think, capable of leading to the discretionary judgment the primary Judge made: that is, no pertinent error is demonstrated.

It should not, however, be thought that even long-delayed trials of allegations of sexual abuse, where potential witnesses might not be available or information may have been destroyed, cannot be held on the footing that the absence of detailed particulars of dates or places that an accused could be expected to identify necessarily leads to the conclusion that an accused person cannot have a fair trial. In many instances, the absence of such specificity might not put at risk the prospect of a fair trial. If, for example in this case, the accused had available to him year books or other information tending to show his whereabouts in the year in question, or if it were the fact that he had been on long service leave throughout the period in question, it may well be that such particulars as were provided would have been adequate for the purpose. Unfortunately, issues such as these were not explored.

Because of the way in which matters proceeded before the Judge, the outcome of this appeal must be as Justice Davies and the President have indicated.

THE PRESIDENT: The order is the appeal is dismissed.

THE QUEEN v LAURENCE JOHN SMITH & ANOR [2000] QCA 443

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THE QUEEN v LAURENCE JOHN SMITH & ANOR [2000] QCA 443 (25 October 2000)

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