56It was submitted for Mr Webb that his Honour had erred in not granting a permanent stay on all counts upon the basis of delay, loss or destruction of evidence, the fact that the complainant was dead, the Crown's reliance upon a collection of hearsay evidence and DNA evidence and oppression. Mr Scragg acknowledged that the refusal of a permanent stay was a discretionary decision, and that it was necessary to demonstrate error in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499.
57Mr Scragg repeated the submissions made at first instance and contended that, in the exceptional circumstances of this case, a permanent stay of the prosecution should have been ordered.
58Mr Scragg submitted that his client would be prejudiced in the conduct of the trial to such an extent that a permanent stay should be ordered. Not only was there an inability to cross-examine the complainant, but there was, as well, loss and destruction of primary evidence.
59Counsel submitted that the "DNA evidence creates ... unacceptable unfair prejudice" and that "in the absence of the complainant, a conviction would be inevitable" (T9.19-23, 21 September 2012).
60Whilst acknowledging that EF did not give evidence which directly implicated Mr Webb, counsel submitted that the inability to cross-examine EF deprived Mr Webb of the opportunity to test the complainant's account. Areas of suggested testing included possible inconsistencies between her now lost 1991 statement and her 2011 interview, and areas concerning the identity of her assailant, possible intoxication, the issue of consent and other issues which would have been open for cross-examination, if EF had been available to give evidence at trial. He submitted that it was not in issue that EF did not consent, but that the possible trial issue concerned the need for the Crown to negate any belief by the accused person that the complainant was consenting. Reliance was placed upon Banditt v The Queen [2005] HCA 80; 224 CLR 262 at 276 [37].
61Mr Scragg submitted that the primary Judge fell into error in holding that the availability of witnesses who could give evidence concerning the complainant's account significantly mitigated the prejudice to Mr Webb arising from her unavailability.
62Counsel submitted that his Honour's reasoning which led to the ruling excluding the evidence of attempted anal intercourse (Count 2), supported a general view of the evidence that a permanent stay ought to have been granted with respect to all counts.
63The Crown submitted that no factual or legal error had been demonstrated in his Honour's decision refusing the permanent stay. The Court was taken to a number of authorities which supported the approach taken by the primary Judge on the stay application.
Decision on Mr Webb's Appeal
64The principles concerning abuse of process, to be applied on an appeal such as this, are not in doubt. It has been emphasised that the power to stay permanently a criminal prosecution will be used only in most exceptional circumstances: Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23 at 31. The onus of satisfying the Court that there is an abuse of process lies upon the party alleging it, and the onus is a heavy one: Williams v Spautz [1992] HCA 34; 174 CLR 509 at 529.
65The question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations, including the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime and the need to maintain public confidence in the administration of justice: Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 395-396.
66Because a permanent stay of criminal proceedings is a wholly exceptional step, it has been said that it should be ordered only in an extreme case: R v WRC [2003] NSWCCA 394; 59 NSWLR 273 at 282 [55]-[56] (Spigelman CJ).
67In Dupas v The Queen [2010] HCA 20; 241 CLR 237, the Full High Court said at 250 [35]:
"Characterising a case as extreme or singular is to recognise the rarity of a situation in which the unfair consequences of an apprehended defect in a trial cannot be relieved against by the trial judge during the course of a trial. There is no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered. In seeking to apply the relevant principle in Glennon, the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences."
68The fact that loss of primary evidence does not of necessity render a trial unfair was emphasised by the Full High Court in The Queen v Edwards [2009] HCA 20; 83 ALJR 717 at 722 [31]:
"Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair."
69In R v McCarthy (NSWCCA, 12 August 1994, BC94070870), Gleeson CJ observed (at page 11):
"Time and time again it happens in criminal proceedings that for any one of a variety of reasons witnesses who may be regarded as important by one side or the other die, or become ill, or lose their memory, or lose documents. If the result of that were that nobody could obtain a fair trial, and the proceedings had to be permanently stayed, it would go a long way towards solving the problems of delay in the criminal lists in this State. However, the position is that it is well recognised that an occurrence of that kind does not of itself mean that a person cannot obtain a fair trial or that proceedings need to be stayed. In this connection I refer to what was said in R v Adler (unreported CCA, 11 June 1992) and R v Goldberg (unreported CCA, 23 February 1993)."
70This statement has been applied frequently by this Court and by single Judges in this State: R v Hatfield [1999] NSWCCA 340 at [17]; R v Pike [2000] NSWCCA 347 at [28]; R v Rose (No. 1) [2001] NSWSC 818 at [45].
71The modern phenomenon of "cold case" or "cold hit" investigation, and the forensic consequences arising from it, have been recognised in a number of cases: R v Fleming [2007] NSWSC 337; Aydin v R [2010] VSCA 190; 28 VR 588; R v Smith (No. 1) [2011] NSWSC 725. In Aydin v R, Harper JA (Buchanan and Redlich JJA agreeing) observed at 592 [17], by reference to the decision of the High Court of Australia in The Queen v Edwards:
"In Edwards the court thus stressed that it is not sufficient that the loss of relevant material could or might result in injustice or unacceptable lack of fairness; it must be shown that that would be the result. And the court further stated that a permanent stay must not be granted unless the court before which the application is made is 'satisfied that the continuation of the proceedings constituted an abuse in an exceptional or extreme case'."
72The primary Judge considered all the submissions advanced in the context of this case, in reaching the discretionary determination that a permanent stay ought be refused. It was necessary for his Honour to have regard to the particular features of the case for the purpose of determining whether the exceptional step of a permanent stay ought be taken.
73The regrettable fact that the complainant had passed away did not give rise to any automatic consequences with respect to the trial of Mr Webb. It was necessary that his Honour consider the areas of asserted prejudice, advanced on behalf of Mr Webb, resulting from the death of EF and other suggested difficulties said to arise from lost or destroyed evidence.
74This was not a case where the complainant purported to identify Mr Webb as her assailant. She had provided a broad description of her assailant which was not inconsistent with Mr Webb's features. Beyond that, the complainant described the incident in the car park on 23 November 1991, involving the making of threats with a broken glass bottle and subsequent sexual assaults perpetrated by the assailant. As EF herself explained in the 2011 interview, facial identification was not her strength (see [37] above).
75Mr Webb was interviewed by police in March 2011. Although he said that he had no recollection where he was on the morning of 23 November 1991 (when he was aged 18 years), he denied that he had been inside the locked car park of the Oxford Street premises at any time, let alone that he had any sexual contact with a person in that location and, in particular, a 70-year old woman.
76With respect, it is unrealistic to consider that the conduct of the trial of Mr Webb, if the complainant was available to give evidence, would have involved any issue of consent, or belief as to consent. The observations made by the most experienced first-instance Judge in this respect identified the unlikelihood of trial counsel exploring such an issue (see [50] above). A recital of EF's account renders unrealistic any issue of belief as to consent, with the incident commencing with threats by the assailant brandishing a broken bottle.
77The other areas of possible testing of the evidence of EF posited by Mr Scragg in submissions were likewise unrealistic.
78Although trial defence counsel would no doubt consider possible lines of questioning of EF which were based upon a fallback position that Mr Webb was, in fact, at the scene and that he was, in fact, the person who engaged in sexual activity with the complainant, it is difficult to see any realistic scope for questioning of this type in this trial.
79These matters are important because the application for a permanent stay was not to be determined upon the bare basis that there was an inability on the part of Mr Webb, as the accused person, to confront in the witness box the person who complained that crimes had been committed against her. It was necessary to consider what areas of challenge or confrontation, by way of cross-examination of EF, would realistically present themselves in the context of this trial.
80In truth, it is difficult to see that there is any viable or feasible area of challenge to the account of EF which defence counsel would pursue. It might be thought that experienced defence counsel would take a course which would have seen EF out of the witness box at the earliest possible time.
81There is considerable force in the Crown submission that there is a strong case against Mr Webb. It is correct that the Crown case depends upon DNA evidence, but that evidence constitutes a very powerful link placing Mr Webb at the scene of the crime, and as the person who ejaculated into the mouth of the complainant, with EF then spitting out the content of her mouth onto the ground in Car Space No. 6 at the spot where Item 7 was obtained. The forensic examination of that site identified DNA of EF and Mr Webb in a manner which is highly incriminating of Mr Webb. In addition, there is incriminating DNA evidence on the swab taken from EF's slip.
82The primary Judge was well aware that the Crown case was strongly dependent upon this DNA evidence. This aspect of the Crown case was not sought to be impugned on the permanent stay application.
83The witnesses who will be called at Mr Webb's trial will give evidence on a range of topics, including the critical evidence of the location of the stain on the ground in Car Space No. 6 and the subsequent DNA examination undertaken of Item 7 located at that point, as well as the sample obtained from EF's slip. Although it is the case that the complainant's account will be placed before the jury by way of her video-recorded interview made some 20 years after the event, that account is essentially consistent with the account given by her in November 1991 to a range of persons who will give evidence.
84Mr Webb's complaint can be put no higher than he has lost a chance to explore certain avenues of enquiry at trial, although those avenues seem far removed from any issue which could reasonably give rise to acquittal. The loss of such a chance is of no real assistance to an applicant for a permanent stay of a criminal trial: R v Helmling (NSWCCA, 11 November 1993, unreported, at page 5) (Hunt CJ at CL, Allen and Loveday JJ agreeing).
85The Crown pointed to the circumstances in Aydin v R as bearing some similarities to the present case. In particular, the Crown submitted (correctly) that the following passages from the judgment of Harper JA had application to this case. His Honour said at 592-593 [20]-[26]:
"[20] Both before her Honour, and on this application, it was submitted on behalf of the applicant that in her original statement, now lost, the complainant probably gave more details about her assailant than appear in the statement made after the applicant became a suspect. If those additional details were now available, the applicant might be able to point to discrepancies between them and his own appearance. It is already apparent that photographs said to have been taken of the applicant at about the time of the offence show a man without a paunch; whereas the complainant now says that her attacker had a pot belly.
[21] It was submitted on this application, but not in the court below, that a like argument could be made about the vehicle in which the complainant's assailant was travelling. She may have given a description of it in her first statement; and even if that description were not sufficient to enable the police to identify that vehicle as being associated with the applicant, it may have been detailed enough to enable the applicant to deny any connection with it.
[22] It is appropriate, it seems to me, to test the applicant's submissions by asking what the realities are likely to be should the trial proceed. As was said by the authors of Abuse of Process in Criminal Proceedings:
Unsurprisingly, ... courts ... have been concerned to ensure that unscrupulous and opportunistic defendants are prevented from either successfully making false claims concerning the purported prejudice suffered because of the loss by the prosecution or constructing false defences ex post facto based on knowledge of the unfortunate loss. This attitude of scepticism towards defence complaints of prejudice in these circumstances is consistent with that concerning defence complaints arising out of prosecutorial delay. In ... R v Cardiff Magistrates' Court, Ex p Hole ... Bingham CJ insisted that the defence, in arguing abuse, would have to establish precisely how in relation to the defence(s) to be advanced at trial prejudice was suffered, '... it is necessary to look at the charges and see exactly what defence it is that they are impeded from advancing'.
[23] If the prosecution fails in this case to satisfy the jury beyond reasonable doubt that the applicant's fingerprints were found on the window of the Ford Escort on the day of the assault, then the jury will of course return a verdict of not guilty. We are therefore concerned with the position which would (not could) arise were the prosecution to discharge the onus upon it to prove to the requisite degree that the fingerprints found on the Ford Escort did match those of the applicant.
[24] Had the match been made within a short period after the offence, the applicant would even then have escaped a verdict of guilty only by advancing, probably with the assistance of supporting evidence, an exculpatory hypothesis - an hypothesis which had his fingerprints being placed on the window on an occasion other than the early morning of 26 September 1982. The demonstration of a discrepancy between the complainant's description of her attacker and the applicant might, but probably would not, advance that purpose: the incident occurred well before dawn, the complainant's evidence is that she was taken completely by surprise, and it was probably all over quickly. In those circumstances, a mistake in her description of him would probably be an acceptable, but not exculpatory, explanation: of itself, it probably would not create a reasonable doubt about the circumstances in which the applicant's fingerprints came to be on the window.
[25] The same is true about a discrepancy between the complainant's description of her assailant's car (if she gave one) and any vehicle associated with the applicant. She may have been mistaken. Or she may have accurately described a car actually used by the applicant that night, but not otherwise associated with him. Or she may have accurately described the assailant's vehicle, but that person was not the applicant.
[26] The conclusion that the applicant's fingerprints came onto the window on a date other than 26 September 1982 is only likely to be sufficiently persuasive to raise a reasonable doubt about the guilt of the applicant if other or additional material is put before the jury. It is difficult to see how the applicant's ability to do this has been adversely affected by the loss of the police file. The missing photograph of another fingerprint might, if found, raise the possibility that another person was the wrongdoer. Or it might depict fingerprints which match those of the applicant. Or it might be that of a person upon whom no suspicion could be placed. It is impossible, it seems to me, to conclude that, in the absence of some material from the applicant, the production of the missing file would assist the applicant in raising the necessary doubt."
86Aydin v R involved a prosecution case based upon alleged fingerprint identification of the accused person made many years after the alleged offence. Fingerprint evidence may provide powerful and cogent evidence of identification, giving rise to a direct link between the accused person and the crime: Chahine v R [2006] NSWCCA 179 at [96]; Halmi v R [2008] NSWCCA 259 at [81]. If the fingerprint evidence is reliable and strongly probative, the practical focus of the trial may become whether there exists a reasonable innocent hypothesis to explain the presence of the accused person at the relevant place.
87As Harper JA observed in Aydin v R, other theoretical questions or lines of enquiry, which may not be undertaken because of a lost witness or evidence, are just that - theoretical and not realistic. The same point was made in El Bayeh v R [2011] VSCA 44; 206 A Crim R 541 at 552-553 [36], where Nettle JA (Neave and Tate JJA agreeing) said that "a trial is not rendered unfair by reason only that evidence of which it cannot be said whether it would have assisted the accused or the Crown is no longer available".
88In the present case, if the DNA evidence is reliable (and there was no submission to the contrary), Mr Webb's semen, intermingled with EF's DNA, was located at the precise scene of the alleged sexual assaults inside a secure car park, with that sample having been taken at the scene on 23 November 1991. There is also incriminating evidence on EF's slip. That is powerful evidence that Mr Webb is guilty of these crimes. Of course, it is necessary for the Crown to prove, to the criminal standard, the ingredients of each offence. However, if the DNA evidence is reliable, the real issue in the trial (without in any way reversing the onus of proof) will be whether a reasonable hypothesis exists as to how Mr Webb's semen came to be at that location, at that time, if he was not EF's assailant.
89No House v The King error has been demonstrated on the part of the primary Judge in his decision refusing to stay any of the counts on the indictment.
90It was for these reasons that I joined in the order dismissing Mr Webb's appeal.