Webb v R; R v Webb

Judgment 1MACFARLAN JA: My reasons for joining in the making of the orders referred to in [3] of Johnson J's judgment are those set out in that judgment. 2JOHNSON J: On 21 September 2012, the Court heard together an appeal by Robert Paul Webb under s.5F(3) Criminal Appeal Act 1912 against a refusal by his Honour Judge Woods QC to permanently stay a prosecution, and an appeal by the Crown under s.5F(3A) against an evidentiary ruling by his Honour excluding certain evidence at the forthcoming trial of Mr Webb. 3At the conclusion of the hearing of the appeals on 21 September 2012, the Court made the following orders: (a) an order dismissing Mr Webb's appeal; (b) an order allowing the Crown appeal; (c) an order setting aside the evidentiary ruling contained in [67] of the decision of his Honour Judge Woods QC of 27 July 2012; (d) in relation to the Crown appeal, an order granting Mr Webb a certificate under the Suitors' Fund Act 1951 if he is qualified. 4These are my reasons for joining in the orders of the Court made on that day.

5On 25 July 2012, Mr Webb was arraigned on an indictment containing the following charges: (a) Count 1 - On 23 November 1991 at Surry Hills, he did have sexual intercourse with EF without her consent, knowing that she was not consenting, in circumstances of aggravation, namely that he threatened to inflict actual bodily harm upon EF by means of an offensive weapon, namely a broken glass bottle (s.61J(1) Crimes Act 1900). (b) Count 2 - On 23 November 1991 at Surry Hills, he did, with intent to have sexual intercourse with EF, threaten to inflict actual bodily harm on her with an offensive weapon, namely a broken glass bottle (s.61K(b) Crimes Act 1900). (c) Count 3 - On 23 November 1991 at Surry Hills, he did have sexual intercourse with EF, without her consent, knowing that she was not consenting, in circumstances of aggravation, namely that he threatened to inflict actual bodily harm upon EF by means of an offensive weapon, namely a broken glass bottle (s.61J(1) Crimes Act 1900). (d) Count 4 - On 23 November 1991 at Surry Hills, he did steal a motor vehicle, namely a white Volvo, the property of EF (s.154A(1)(a) Crimes Act 1900). 6As will be seen, Counts 1 and 3 involve allegations of fellatio and Count 2 an allegation of attempted anal intercourse. 7On 27 July 2012, his Honour refused Mr Webb's application for a permanent stay of all counts on the indictment. His Honour certified that judgment as being a proper one for determination on appeal, so that Mr Webb does not require the leave of this Court to bring this appeal: s.5F(3)(b) Criminal Appeal Act 1912. 8In circumstances to be outlined shortly, his Honour determined effectively to exclude all the evidence which the Crown sought to adduce with respect to Count 2, pursuant to ss.135 and 137 Evidence Act 1995. This ruling gave rise to the Crown appeal under s.5F(3A) Criminal Appeal Act 1912.

9At about 7.30 am on Saturday 23 November 1991, EF (then aged 70 years) drove her white Volvo sedan into the secure underground car park of 32A Oxford Street, Darlinghurst. EF worked as an accountant and company secretary of a building company, and was on her way to the office to finalise some bookkeeping matters. 10EF used a remote control to open the door to the car park and proceeded to park her car in her allotted car space. 11The Crown alleges that the assailant observed EF open the door and then followed the vehicle into the car park. When the vehicle stopped, he confronted EF with a broken glass bottle. The Crown alleges that EF was then forced to perform fellatio on her assailant twice, and he attempted to penetrate her anally. During the second enforced fellatio, the Crown alleges that her assailant ejaculated into EF's mouth and she spat it out onto the ground. Blood was also deposited onto some of EF's clothing during the assaults. 12The Crown alleges that the assailant then stole EF's Volvo motor vehicle and drove away in it. The vehicle was later found not far away in Foley Street, Darlinghurst. 13EF went upstairs, washed her mouth out and called her daughter and the police and ambulance were contacted. 14Two ambulance officers, Graeme Watts and Christopher Bonham, attended at the scene. They took an account of events from EF, as did attending police, particularly then Constable Michael Sparkes. 15EF was taken to Royal Prince Alfred Hospital by ambulance where she was examined by Dr Anne Chan. 16EF gave a statement to police later that day. Her vehicle was recovered later that same day and was forensically examined by police. 17Police attended the crime scene in the car park and secured certain items. In particular, a swab of a stain on the ground was collected in Car Space No. 6 (Item 7). Semen and human blood was detected in Item 7 and the swab was retained. That material, and material found on an item of clothing (a slip) worn by EF, are critical to the Crown case against Mr Webb. 18Two days after the attack upon her, EF spoke to her employer, John Alan Pope, and told him of the attack. She took him to the car park and pointed out, amongst other things, the place on the ground where she had spat out her assailant's ejaculate and where Item 7 was collected. 19By the mid-1990s, the matter was filed away as an unsolved crime. In his judgment of 27 July 2012, the primary Judge said at [8]: "By about mid 1995, police considered that this case was going nowhere. As there had never been an arrest, this was possibly not an unreasonable assumption, but the effective abandonment of the case resulted in the loss of a number of items of evidence. Of particular importance was the loss of the actual police statement made at the time by [EF] - her original formal version. As well, items of her clothing and photographs used in an exercise of attempted photographic identification were lost. This loss of potential evidence causes difficulties now. It did not cause any difficulty in the 1990s because the case had been virtually - but not wholly - abandoned." 20Although Item 7 was retained, a further swab of a nearby stain in Car Space No. 7 (Item 6), which was found to contain human blood, was later destroyed. Other swabs and scrapings were also destroyed. 21In June 2002, Mr Webb was in custody at Lithgow Correctional Centre. A sample of his DNA was obtained as a matter of course, and the results entered onto the DNA database. 22In August 2010, police received notification of a "cold case" link between Mr Webb's DNA and Item 7. The case was then assigned to Detective Constable Julia Bradley as part of the Cold Case Justice Project, and she commenced a review of the investigation. 23On 13 January 2011, police interviewed EF (then aged 90 years) in the presence of her daughter, and EF gave a detailed account of the attack upon her in the car park on 23 November 1991. The interview was video recorded. 24On 26 March 2011, Mr Webb was interviewed by way of ERISP and he denied any involvement in the events of 23 November 1991. He said that he had no memory of his whereabouts on 23 November 1991. He had no explanation as to why a DNA profile obtained from the alleged crime scene matched his DNA profile. He was charged with the offences. A further DNA sample was obtained from him. 25EF died in April 2011. 26Further analysis was undertaken by reference to the DNA sample obtained from Mr Webb and three of his relatives, and the samples obtained at the crime scene and from EF. That analysis, in May 2011, produced the following findings: (a) Mr Webb was found to have the same DNA profile as the DNA profile recovered from the stored stained fabric from EF's slip and the sperm fraction from the stored seminal swab from Item 7. A frequency ratio was given as one in eight billion, namely it was expected to occur in approximately one in eight billion individuals in the general population. Mr Webb's three relatives were excluded. (b) The DNA recovered from the non-sperm fraction of the swab from Item 7 was found to contain a mixture which appeared to be from two individuals, one male and one female. Mr Webb and EF could not be excluded as contributors to the mixture - it was approximately 10 billion times more likely to obtain this profile if it originated from Mr Webb and EF than from two unknown, unrelated individuals. Once again, Mr Webb's three relatives were excluded.

27The Crown proposes to adduce the following evidence at the trial of Mr Webb. EF's Account 28The Crown gave notice under s.67 Evidence Act 1995 that it will tender the video-recorded interview with EF, conducted on 13 January 2011, as previous representations made by a person who is not available to give evidence about the relevant asserted facts, where the representations were made in circumstances that made it highly probable that the representations were reliable: s.65(2)(c) Evidence Act 1995. 29Despite the passage of years and EF's age at the time of interview in 2011, she provided a generally clear and vivid account of what had happened in the car park on 23 November 1991. Given the issues raised on appeal, it is appropriate to set out parts of EF's account. 30EF recalled entering the underground car park using a remote control, and when she parked the car she noticed "...there was a man and he held in his hand one of this beer bottle bottom broken off and asked me to get out of the car" (A27). At Q/A28-40, EF said: "... he made me take his ... well, in his mouth and help him ... so anyway probably I wasn't very good at it because I had no experience in this sort of thing ... and then he also tried to make him [sic] bend over and put his penis into my backside ... but he wasn't successful ... so he, he make me stand up again and continue to, oh, and he was very, how should I put it, polite, or he wasn't rough ... and I asked him if I could please take my glasses off, I was afraid my glasses will break ... and he allowed me to do this ... so I put my glasses in my bag which was in the car ... and then he continued until he came to the end ... and then he told me that I had to swallow it but I couldn't I spit it out and that was on the floor... after that he wanted to take the car by forcing me with this glass. Well I wouldn't let him hurt me with that broken glass so I told him, take it, and I even let him out with, from the door because that was closed." 31At Q/A98 and following, EF detailed the assault further: "Q98 ... When he got you out of the front driver's seat, where did he take you? A He didn't take me anywhere he just made me stand against the car so he could put my back to the car and he was in front of me. ... Q100 I know it's hard to say it but if you are able to tell me what happened. A He didn't get undressed he just pulled his pants down, I have seen his underpants which was colourful ... Q101 Colourful underwear? A ... that I remember, I could only remember his underpants, I don't remember his face. Q102 O.K. And so did he take his underwear off? A No. Q103 No. What, what did he do whilst he was standing there in his underwear? A Then he put his penis out and put it in my mouth. Q104 Ok. A Because I was too frightened to do anything. Q105 That's very understandable. Did he, when he put his penis in your mouth did he say anything to you? A He, he told me that I should suck it but I had no experience in this type of thing so probably I wasn't very good at it because that's the reason he tried to put it in my backside. Q106 O.K. Do you know how long his penis was in your mouth for? A That I couldn't tell you. When somebody's very frightened ... Q107 Mmm. A ... I don't think they remember." 32EF was asked the following (Q/A114-121): "Q114 Now going back to the part where you said earlier once he'd taken his penis out of your mouth and he said, 'Swallow it' and you spat it out on the ground ... A And luckily he didn't look because he probably would have cleaned it up himself ... Q115 Mmm Hmm. A ... but it stayed there. Q116 Is there anything about his penis that was ... A No. Q117 ... you could describe? Was there ... A I remember one thing which is absolutely ridiculous when I was in the, the ambulance ... Q118 Mmm Hmm. A ... I couldn't stop myself talking otherwise I am not a big talker ... Q119 Yeah. A ... and I kept saying that I've never seen such a small penis in my life ... Q120 (LAUGHS) A ... not that I've seen many. Q121 That's O.K. that's O.K. Did you see any blood in the, in what you spat out? Do you recall that? A It was like a thinner version of a cream, white." 33The interview then turned to the attempted anal intercourse (Q/A122ff): "Q122 ... I'll cast your mind back to when he put you in the rear seat of your white Volvo and you said before that he tried to penetrate your backside. Did he remove any of your clothing? A No. ... Q124 O.K. Now at that time, did it feel to you that he was trying to put his penis in our [sic] anus? A (NO AUDIBLE REPLY). Q125 Did you think he was trying to put his penis in your anus? A No, I didn't think that. Q126 Did he try? A No. Q127 OK. A I thought at the time that he must have been gay to not even try vaga [sic] but the backside ... Q128 O.K. What about, did he try to put his penis in our [sic] vagina? Whilst you were in the back seat of the car? When you said that he was unsuccessful before and you were lucky that he was unsuccessful? A I can't hear you. Q129 ... When you said before that he was unsuccessful in trying to penetrate you ... A Backside. Q130 ... in backside, did he also try to penetrate your vagina? A No." 34The part of the interview at Q/A122-Q/A130 relates to Count 2 (attempted anal intercourse) to which I will return in the context of the Crown appeal. 35In the course of the interview, EF referred again to acts which gave rise to Count 2: "A222 He didn't make me bend over immediately only when I wasn't successful to make him come to a climax then he thought maybe he can penetrate from the back. ... Q233 OK. So he originally started with the penis in your mouth then he'd get you to bend over in the car, he tries to put his penis in your backside and what happens next after that? A Well he couldn't penetrate ... I was bleeding there, not strongly just a little bit ... and then went back and put his penis in my mouth ... till he came to a climax and then he told me to swallow it ... but I couldn't swallow it ... but I couldn't swallow it so I just spat it out." 36With respect to the glass implement brandished by the assailant, EF said (at Q/A87ff): "Q87 That's O.K. well when you, when you saw the, did you say the broken beer bottle? A Not the bottle, just the bottom. ... Q89 ... and it was broken and sharp? A very sharp. Q90 Jagged sort of ...? A Yeah. Q91 Can you remember where he held that towards you? Did he threaten you with this broken bottom? A He made me do what he wanted me to do so he placed me in a special, a, that I can't tell you because I was too afraid ... that he will attack me with the glass. ... Q187 ... You were asked before, can you remember anything he said at any time during this whole incident? A No. Q188 Not, no words at all? A I don't remember, I was too frightened .... from the beer bottle." 37Given submissions made for Mr Webb on appeal, it is pertinent to note, as well, EF's replies on the issue of facial identification of the assailant. EF said that the police had shown her photographs of persons after the attack but that her "remembrance of faces is nil" and that police were disappointed at the time (Q/A77-79). EF clearly had a vivid recollection of what she said to police in 1991 in the context of possible photographic identification of her assailant (A156): "All I can tell you is that when he showed me the pictures of the other criminals I said if I would, you would show me some underpants I would remember that but the face I can't." 38The Crown will rely, as well, under s.65(2)(c) Evidence Act 1995, upon representations made by EF in conversations with other persons in 1991 soon after the relevant events. 39Constable (now Sergeant) Sparkes attended the scene of the car park at about 8.15 am on 23 November 1991 and spoke with EF, recording the following in his notebook: "offender followed complainant into underground car park (from Yurong Street). Forced fellatio, attempted anal sex. Complainant said she tasted something funny in mouth (spat out on concrete floor). Offender threatened complainant with brown jagged glass. Offender stole vehicle car and took off. Search of car park with Sergeant Schell revealed dark red stain (complainant showed us). Ambos in attendance. The registration number of the vehicle was EF-510 (NSW) being a white Volvo sedan." 40Then Detective Constable Deanne Stanley also attended the scene and later took a statement from EF. In 2001, Detective Constable Stanley recalled that: "[EF's] statement detailed her driving her white Volvo sedan into the car park of 32A Oxford Street, Darlinghurst and being approached by a male just after she had parked her vehicle. This male threatened her with a jagged glass object, demanded money from her and in fear she handed the male $125 cash. [EF] then describes how she was sexually assaulted, with the male forcing his penis in her mouth. This male then attempted to have anal and vaginal intercourse with her. [EF] then described how the male masturbated and then put his penis in her mouth again, where he ejaculated. [EF] stated that the male demanded she swallow it however she spat the semen onto the ground. The male then left her in the car park and stole her white Volvo sedan and drove out of the car park." 41The Crown will call ambulance officers, Christopher Bonham and Graeme Watts, and Dr Chan. The version of events given to these persons by EF on 23 November 1991 were recorded in contemporaneous documents, and also in statements made by each person. The version of events given by EF at that time is substantially in accordance with that provided by her in her interview on 13 January 2011. 42Mr Pope, EF's employer in November 1991, will be called to give evidence. His evidence will include an account of what EF told him had happened in the car park, together with the fact that EF took Mr Pope down to the car park and showed him the stain where she had spat out her assailant's ejaculate. Mr Pope observed a large red-coloured stain and recalled that it had stayed in the car park for some time. Other evidence will confirm that it was this location from which Item 7 was taken, which gave rise to the DNA evidence implicating Mr Webb. 43Senior Sergeant Stanley and Detective Sergeant Sparkes will give evidence of their involvement in the investigation in November 1991, as will Sergeant Benito Machado, the officer in charge of the 1991 investigation. 44A range of other witnesses will give evidence concerning investigative steps taken in 1991 and in and after 2010 when the cold-case link was made between the swab from Car Space No. 6 and Mr Webb's DNA.

45Mr Scragg, counsel for Mr Webb before the District Court and in this Court, applied for a permanent stay of the proceedings against his client upon the basis that EF had died and could not give oral evidence and be tested by cross-examination, and that certain evidence had been lost or destroyed, including EF's 1991 statement to police and certain items of physical evidence. 46It was submitted in the District Court that Mr Webb could not receive a fair trial in these circumstances. 47His Honour refused the application for a permanent stay of the prosecution. His Honour ruled that the requirements of s.65(2)(c) Evidence Act 1995 had been met with respect to EF's account (at [46]-[49], judgment of 27 July 2012): "46. Save as to count 2, as I have explained, and will detail in due course, [EF's] 2011 version (Exhibit VD1/B) is admissible under the hearsay exception in s 65(2)(c), bearing in mind all the requirements of that provision. 47. What are the circumstances that make it 'highly probable that the representation is reliable'? The general and most important circumstance is the close correlation between the substance of what was reported on the critical day in 1991 (and two days later) to witnesses who will be available to give evidence in this trial and the substance of what appears in the record of interview with [EF] in 2011. 48. The thrust of the 1991 hearsay complaint evidence, which I recited and summarised a few moments ago, which can be attested to by the ambulance officers, by Dr Chan and by Mr Pope, may be regarded by a jury as compelling evidence that she was in fact violently assaulted in the car park that morning. That is certainly the view I take of it. A jury would also take into account, of course, the fact that the car was stolen and found abandoned nearby, consistent with [EF's] story to the ambulance [officers] and other witnesses from the day and shortly thereafter. 49. The defence has pointed to a number of matters of confusion, contradiction and inconsistency in Exhibit VD1/B, some of which I will consider in a moment. These have been carefully put by counsel, but they do not derogate, in my view, from the compelling picture of a violent sexual assault on this woman involving two episodes of forced fellatio in the car park early in the morning as she went to work in 1991. The ongoing general consistency of the description of the episodes of forced fellatio is, it seems to me, something that makes it 'highly probable' that the representations made by her twenty years later in front of the video camera (Exhibit VD1/B) are reliable, as section 65(2)(c) requires as a necessary condition of admissibility." 48His Honour adverted (at [50]) to difficulties which Mr Scragg had asserted would arise in the conduct of the trial: "I bear in mind of course, as was put by counsel for defence, the significance of the fact that [EF] is not available and will not be available to be cross-examined, as she died of heart failure at the age of ninety-one some two months after the video was made in January 2011. The defence has the difficulty, as Mr Scragg has pointed out, that the defence cannot compare and contrast the initial police statement which has been lost with the 2011 version. Indeed that is a significant disadvantage which the defence will have in the trial. Notwithstanding that, there will be evidence from live and available witnesses who spoke to [EF] in 1991 immediately after the alleged event. To a significant extent this mitigates the disadvantage I have mentioned." 49The primary Judge then referred to suggested prejudice arising from the inability to cross-examine EF about the state of possible intoxication of the assailant, the size of the assailant's penis, the appearance of the broken glass bottle and other matters (at [51]-[55]). 50His Honour took account of counsel's submissions that prejudice would flow from the loss of physical evidence (at [56]-[57]). A further area of suggested prejudice was the lost opportunity to cross-examine EF concerning consent. His Honour rejected this submission as being unrealistic and fanciful in the circumstances of this case (at [58]-[59]): "58. ... As I indicated to defence counsel during argument, it seems to me unrealistic to suggest that unfair prejudice could arise due to loss of opportunity to cross-examine as to the consent issue. The suggestion that a 70 year old married woman, a Holocaust survivor with a number tattooed on her arm, would consent to sexual intercourse in an underground car park on her way to do her work as a bookkeeper at 7:30 on a Saturday morning, seems to me unlikely in the extreme. The written submissions say that: 'On the version given in 2011 it can be argued that the complainant made no verbal complaint, offered no physical resistance, refused to swallow semen and that this may have caused the offender to believe that the complainant was consenting. But there is no opportunity to cross examine on consent and/or what the complainant did to show that she was not consenting.' 59. While Mr Scragg is correct to make explicit all possible arguments in his client's interest, this particular argument is unrealistic. His client does not admit to having been at the car park on 23 November 1991. Counsel can have no instructions that the complainant consented to sexual intercourse. Of course, counsel would be entitled to test the evidence, but in the circumstances of this case, I do not believe that competent and experienced counsel like Mr Scragg would (if hypothetically he were in the position of cross-examining a 70 or 90 year old [EF]) in fact question her in front of a jury to suggest that she had consented or even appeared to consent to the acts she described. Such an approach would in forensic reality be likely to offend a jury profoundly, for obvious reasons. This particular argument as to supposed unfair prejudice arising from an inability to cross-examine the complainant has no substance." 51This submission was repeated in this Court. In my view, it remains an unrealistic and fanciful proposition for the reasons explained by the primary Judge. Refusal of a Permanent Stay 52His Honour acknowledged that the death of EF meant that Mr Webb would not be able to confront the complainant and that this was an unusual scenario. The presiding Judge said (at [72]-[76]): "72. The mere fact that events take place many years ago is not automatically a reason to conclude that the trial of an accused person will necessarily be unfair. Doubtless it may be difficult for the accused, in 2012, to remember his movements and activities on a specific day in 1991, but it is not necessarily impossible and if he has an alibi it can be brought forward. In any event, the jury will have to be cautioned strongly on this point as to possible forensic disadvantages. Such cautions are given in many trials. 73. Nor does the death of important witnesses necessarily preclude fair trial. If that were so, murder trials would by definition be impossible. As with delay, cautionary directions to a jury are required where important witnesses have died or are unavailable. 74. I have considered the oral arguments from Mr Scragg and his helpful written submissions which I have placed with the court papers. In general, I am satisfied that the probative value of Exhibit VD1/B is very considerable, that it substantially outweighs any possible unfair prejudice, and despite the novelty of the situation, I am satisfied that any prejudice to the accused can be minimised or removed by appropriate cautionary directions to the jury. 75. So far I have spoken about the versions of the alleged offences given by the complainant. I have not focused on the DNA evidence and no doubt some attention will be given to that by counsel in due course. The Crown says that it will be possible to show the collection of semen from an item of clothing worn by the complainant on 23 November 1991, the taking of that to the relevant laboratory, and its testing. The Crown says the report in tab 22 of exhibit VD1/D links the semen with the accused. Of course, if the Crown fails to prove that connection, the Crown case will necessarily fail. 76. It is not possible to base a conviction of this man on identification by the victim because there was none. She does not purport to identify him. In 1991 she was shown some photographs, but she could only give a very limited description, although that description may include some aspects that are of significance." 53Whilst acknowledging that this case was "highly unusual" and thus, in that sense, "exceptional", his Honour was not satisfied that the exceptional step of a permanent stay of criminal proceedings should be ordered. His Honour said (at [79]-[80]): "79 As the High Court said in Jago v District Court of NSW (1989) 168 CLR 23 and in other cases, there is a legitimate public interest in the disposition of charges of serious offences, in the conviction of those guilty of crime and in the need to maintain public confidence in the administration of justice. In my view it would be inappropriate to exclude this case from trial in a court of law. To do so would be to undermine the proper expectation of citizens that charges of serious crime should, even if many years have passed, be brought before the courts. The complaint evidence in this case is very unusual - it is fresh, vivid, and broadly consistent. 80. I have taken into account the delay, the destruction of evidence and the limitations on cross-examination of witnesses, but, nonetheless, in my view there is nothing oppressive in this prosecution. The accused will have the general protections of the law." The Evidentiary Ruling Concerning Count 2 54Although declining to permanently stay any of the counts on the indictment, his Honour ruled, in the manner attracting a Crown appeal, that the account of EF with respect to the charge of attempted anal intercourse (Count 2) ought be excluded, with the consequence that the Crown would have no evidence to support that count. In this respect, his Honour said (at [36]-[37]): "36. ... in my view the denial in 2011 about the attempt to put his penis into her anus, and the lack of certainty about that, so weakens that aspect of the Crown case that the charge of attempted anal intercourse (count 2) is not sustainable. 37. That evidence is confusing and contradictory of the previous version (questions 26-41) relating to her backside. In terms of s 135 or 137 of the Evidence Act, the evidence said to be a basis for count 2 could not properly be the basis for a conviction on that count. Even taking into account the medical evidence about the sore backside and some other evidence on that subject, and evidence pointing to manhandling of a sexual kind which involved bending her over in the car, the 2011 version by [EF] cannot in my view sustain count 2. Under ss 135 and 137 I will disallow in the Crown case evidence in Exhibit VD1/B said to support count 2. I will particularise the excluded material later in the judgment but I will allow that evidence to be utilised by the defence, if the accused wishes to bring it forward for some legitimate forensic purpose." 55His Honour returned to this aspect (Count 2) later in his judgment (at [66]-[68]): "66 ... I repeat also that the evidence which the Crown puts forward relating to attempted anal intercourse, count 2, is confusing and possibly misleading. There is some evidence about it, but at one point in the 2011 interview [EF] bluntly denies that there was, in effect, attempted anal intercourse. 67. I do not regard the material about count 2 as having no possible relevance in this case, but it is so confusing that it could not be a proper basis for a conviction. I will not allow it in the Crown case as evidence in support of count 2. I exclude the following questions and answers: 31-33; 47-50; 105 from 'because'; 122 from 'and' to 'backside'; 124-131; 143; 222 from 'then' to 'back'; 223 from 'he tries'; 234; 264. As well it will be necessary to edit corresponding material out of the complaint evidence. 68. It follows that the Crown will inevitably withdraw count 2. However I do not have any such concern about the balance of Exhibit VD1/B."

Mr Webb's Appeal Against the Refusal of a Permanent Stay

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.

The Crown Appeal Against the Ruling Excluding Evidence Concerning Count 2

Submissions of the Parties 91The reasons for his Honour's ruling excluding evidence with respect to Count 2 were set out at [54]-[55] above. 92Mr Scragg did not challenge the Crown submission that his Honour's ruling on the admissibility of evidence eliminated or substantially weakened the prosecution case on Count 2: s.5F(3A) Criminal Appeal Act 1912. As the trial Judge observed, that was the inevitable consequence of the ruling. 93It is necessary for the Crown to demonstrate error in accordance with the principles in House v The King to make good the appeal against this ruling. 94The Crown submits that it was erroneous in fact to conclude that the single answer in EF's recorded interview which denied an attempt at anal penetration rendered inadmissible her entire evidence concerning Count 2. The Crown pointed to a variety of places in the account given by EF to other persons in November 1991, where it was made entirely clear that the assailant had attempted to anally penetrate her, as well as other answers contained in the 13 January 2011 interview, a number of which are included in the extracts above (at [30]-[31], [33], [35]). 95Mr Scragg submitted that his Honour had been correct in this respect and that the apparent conflict between the accounts given by EF in the 13 January 2011 interview were such that no error had been demonstrated in his Honour's decision to exclude EF's account with respect to Count 2 under ss.135 or 137 Evidence Act 1995. Decision Concerning Crown Appeal 96I am satisfied that error has been demonstrated in his Honour's ruling on this topic. 97It is appropriate to keep in mind that the evidence which will go to the jury in support of Count 2 will be based upon the account of EF given to different persons in 1991, and again in 2011. 98In 1991, EF told Detective Stanley that her assailant attempted to have anal intercourse with her (AB251). EF told Sergeant Sparkes on 23 November 1991 that her assailant had attempted to engage in anal sex with her (AB254). 99EF told Ambulance Officer Watts on 23 November 1991 "I have a sore lip, I've got a horrible taste in my mouth. I have a pain in my backside" (AB303). 100In addition, EF told police during the interview on 13 January 2011 on several occasions that her assailant had tried to place his penis in her "backside" (Q/A105, 127, 129-130, 222, 259 and 264). 101Although a submission may be advanced to the jury that EF's answers at Q/A125-127 raise an issue as to whether anal intercourse had been attempted, these questions and answers would need to be considered in the context of the totality of evidence which bore upon that subject matter. 102With respect, I consider that the primary Judge fell into error in concluding that the probative value of this evidence was substantially outweighed by the danger that the evidence might be misleading or confusing, for the purpose of s.135(b) Evidence Act 1995. 103Further, his Honour erred in concluding that the probative value of the evidence was outweighed by the danger of unfair prejudice to Mr Webb, for the purpose of s.137 of that Act. This Court has held that it is erroneous to hold that evidence must be "unambiguous" to withstand rejection under s.137, noting that it is for the jury to determine what facts should be found: R v SJRC [2007] NSWCCA 142 at [21], [36]-[39], [47]-[49]. To the extent that his Honour's ruling in this case was based upon s.137, it demonstrates the same error. In addition, it was not demonstrated that there was "unfair prejudice" to Mr Webb. It was not probable that the evidence would be misused by the jury in some unfair way: Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at 325-326 [91]-[93]. 104The criticism of the evidence on this aspect constituted, at best, an argument which could be advanced on behalf of the defence before the jury, but this was an argument to be considered in the context of an otherwise strong and consistent body of evidence that EF said that anal penetration had indeed been attempted by her assailant. The Crown submission that the answer which suggests a contrary position may have arisen from a measure of confusion on her part is a viable argument, having regard to the totality of the questions and answers in the interview of 13 January 2011. EF consistently used and understood the term "backside", with uncertainty arising where the word "anus" was used in the question. 105Apart from these particular errors, it must be said that the primary Judge's approach would introduce a degree of artificiality into the trial, where part of EF's account would be excised from evidence before the jury, thereby distorting the narrative provided by EF of the entire incident. The jury will have an opportunity to assess EF's account with respect to all counts on the indictment, by reference to submissions made by counsel and directions given by the trial Judge. 106The evidentiary ruling should be set aside.

Conclusion 107It was for these reasons that I joined in the orders of the Court made on 21 September 2012 as set out at [3] above. 108BEECH-JONES J: I have had the benefit of reading the judgment of Johnson J. I agree with his Honour. Subject to one further matter, his Honour's judgment encapsulates my reasons for joining in the orders of the Court on 21 September 2012. 109The further matter concerns the Crown appeal. The evidentiary ruling that was appealed by the Crown was the exclusion by his Honour in the Court below of every question and answer in EF's video recorded interview in 2011 that supported the Crown case on Count 2 along with all evidence collected in 1991 which recorded a complaint from EF supporting that count. This included statements to the investigating police (see [39] and [40]) and at least one of the ambulance officers. This could only have been justified if his Honour had correctly found that s.135 or s.137 of the Evidence Act 1995 was satisfied in relation to all of this material. 110Leaving aside the answers at Q125 to Q126 of her interview in 2011 (see [33]), EF was consistent in stating that there was an attempt on the part of the offender to have anal intercourse with her. The judgment of Johnson J at [104] illustrates the potential scope of the debate about the correct interpretation of those answers. In light of the answer given by EF to the very next question, Q127 ("...but the backside"), there appears to be considerable support for the Crown's submission. In any event, absent the exclusion of the evidence, this is a matter ultimately for a jury to determine. 111The fact that the answers to Q125 to Q126 raised a single potential inconsistency with what was otherwise a coherent and consistent account that he had been restated by EF a number of times notwithstanding a gap of 20 years did not in my view come close to establishing that the entirety of the evidence recording EF's complaints on this issue might be either "misleading or confusing" (s.135(b) of the Evidence Act 1995) or "unfairly prejudicial" (s.135(a) and s.137). It follows that those sections were not engaged so that no question of discretion or judgment should have arisen as to whether the entirety of this evidence should be excluded. If anything the only evidence that might answer the description "misleading or confusing" is the answers to Q125 and Q126 themselves but their exclusion alone was clearly not in Mr Webb's interests.

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: 07 March 2013