Da v The Queen [2000] ACTSC 58 (20 July 2000)

Last Updated: 16 October 2000

DA v THE QUEEN [2000] ACTSC 58 (20 JULY 2000)

CATCHWORDS

CRIMINAL LAW - stay of proceedings - applicant (accused) committed to stand trial on charges of committing indecent acts and engaging in sexual intercourse with minor - delay of almost 10 years in bringing allegations - records destroyed or lost which would potentially enable the accused to establish an alibi - details given by complainant at committal subsequently found inconsistent with the evidence - complainant's allegations uncorroborated - whether problems associated with the Crown case could be cured by directions or warnings at trial - whether lack of reasonable diligence by the Crown in investigating the matter earlier supports a stay - whether in all the circumstances the prejudice to the fair trial of the accused is such as to support a stay.

Crimes Act 1900 ss 92C(1), 92E(2), 92H and 92K(2)

Evidence Act 1995 (Cth), s 164

Evidence Act 1971, s 76F

Supreme Court (1993), s 61A

Jago v The District Court of NSW and Others [1989] HCA 46; (1989) 168 CLR 23

Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1

Longman v R [1989] HCA 60; (1989) 168 CLR 79

Aitchison v DPP (1996) 90 ACrimR 448; 135 FLR 217

R v CPK (unreported 21 June 1995, Full Court of NSWCCA)

R v Eishauer (unreported 19 September 1997, Full Court NSWCCA)

Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75

R v Reeves (1994) 122 ACTR 1

Doyle v Leroux (1981) Crim Law Review 631

R v Davis (1995) 57 FCR 512

Jones v R [1997] HCA 12; (1997) 191 CLR 439

Doney v R [1990] HCA 51; (1990) 171 CLR 207

Williams v R [1999] NSWCCA 9; (1999) 104 ACrimR 260

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

DA v THE QUEEN

No. SCC 63 of 1997

Judge: Higgins J

Supreme Court of the ACT

Date: 20 July 2000

IN THE SUPREME COURT OF THE )

) No. SCC 63 of 1997

AUSTRALIAN CAPITAL TERRITORY )

DA

v

THE QUEEN

ORDER

Judge: Higgins J

Date: 20 July 2000

Place: Canberra

THE COURT ORDERS THAT:

1. Proceedings upon the proposed indictment be permanently stayed.

1. This is an application by [DA] (the applicant) for the permanent stay of criminal proceedings pending against him.

2. That such a stay may be granted if appropriate cause is shown is plain from the High Court decision of Jago v The District Court of NSW and Others [1989] HCA 46; (1989) 168 CLR 23.

3. A stay of the kind sought is granted only in extreme cases. It must appear that to proceed with a trial of the pending matter would be an abuse of the process of the Court. That does not involve, necessarily, a finding that the prosecution was not launched in good faith. The touchstone is whether, due to a combination of lapse of time, loss of vital evidence and various other matters, it is no longer possible for a fair trial to be had.

4. The judgment to be formed must consider, as counsel for the applicant readily conceded, not only the interests of the applicant in having a full and fair opportunity to defend himself on trial but also to the public interest in:

* the disposition by due process of serious allegations of criminal behaviour;

* the conviction and due punishment of persons who are guilty of crime;

* the maintenance of public confidence in the administration of justice; and

* seeing that justice is done for victims of crime.

5. To reconcile those interests it is necessary, even where serious impediments to a fair trial are identified, to search anxiously for a remedy for those impediments by other less drastic remedies than a permanent stay. In some cases, rulings on evidence and directions to the jury may counteract unfair prejudice otherwise arising.

The background facts - procedure

6. The applicant was committed to stand trial after a hearing in the Canberra Magistrates Court on 3 June 1997. The charges upon which he was so committed were that he in the Territory:

* between 19 May 1986 and 12 December 1986, did engage in sexual intercourse with ... [JR] a person ... then [aged] fourteen years;

* between 19 May 1986 and 12 December 1986 did unlawfully assault [JR] with intent to engage in sexual intercourse with [JR];

* between 19 May 1986 and 12 December 1986 did commit an act of indecency upon ... [JR];

* between 19 May 1986 and 12 December 1986 did commit an act of indecency upon ... [JR].

7. Those offences were created by the Crimes (Amendment) Ordinance 1985 (No. 62) which came into effect on 28 November 1985 (see Crimes Act 1900, ss 92C(1), 92E(2), 92H and 92K(2)).

8. The four charges related to two alleged incidents.

9. The complainant [JR] gave evidence before the learned committing Magistrate that in 1986, he turned fourteen. His date of birth was 1 March 1972. He then was in year nine at high school. During the first semester of the 1986 school year he attended Belconnen High School. For the second and following semesters he attended Ginninderra High School. Towards the end of semester two, before semester three commenced, he was sent to a farm facility conducted by the Education Department on Dairy Flat Road, near Fyshwick. This was designed, JR conceded, to correct behavioural problems he had been exhibiting at school.

10. For the first week he was enrolled in a day program. For the second and third weeks, he "lived in".

11. The applicant, he said, was the teacher in charge of the facility. The latter lived on the farm with his wife and two children (JR could not recall any other family members or house guests).

12. There were no other students then at the farm on a full-time basis, though various school groups did attend from time to time during the day.

13. In week two, the applicant proposed that JR should move into the guest accommodation at the farm, to save the time spent travelling. JR's father agreed to this course, as did JR.

14. It was during that second week, JR alleged, that "something happened". The first incident, he said, followed work on the farm during the latter part of one afternoon of that week. The applicant invited him to the main house for a cool drink. They both had a drink (non-alcoholic). JR sat on the floor, the applicant sat on a couch in the lounge room. The applicant engaged then, JR said, in "like wrestling" with him. At first it was apparently innocent:

"...but then he [the applicant] grabbed me between the legs"

15. JR "wrestled him off". He observed that the applicant had a "snarly" look. JR then left the main house and went back to the guest house.

16. Next morning, the applicant came to wake him "as normal". No reference was made to the events of the previous afternoon.

17. That evening, however, about 7.00pm or 7.30pm, the applicant entered the guest house whilst JR was watching television. "Alf" was, JR said, the program showing. JR was lying on the floor dressed in his pyjamas.

18. After an amiable conversation, the applicant again commenced to wrestle with JR, at first playfully, then, again, he allegedly grabbed JR between the legs, whilst attempting to pull down his pyjama pants. JR protested but the applicant, holding JR about the penis, lead him to an adjoining bedroom.

19. In that room, the applicant exposed his penis and placed JR's hand on it. The applicant, partly using JR's hand and partly his own, then masturbated to ejaculation.

20. The applicant then ordered JR to take his pants off, pushed him face down onto the bed and proceeded to engage in anal intercourse with him.

21. The next day, the applicant acted as if nothing had happened.

22. The third week another student, also having problems at school, came to stay in the guest house. JR and the other student were expelled during that third week. They had obtained liquor and got drunk.

23. JR returned to Ginninderra High. He said that he remained a student there until mid year ten. He told Mr Kildea, counsel for the applicant, that the incidents he referred to did not occur during November or December of 1986 but he was unable to rule out October or earlier.

24. However, no complaint as to the applicant's conduct was made, JR conceded, until June 1996 when JR, after undergoing counselling as part of a drug rehabilitation, complained of those matters to police at Bulli, New South Wales.

25. JR's father confirmed that JR had during the latter part of 1986 been sent to the farm facility to work under the applicant's direction. He also confirmed that "possibly just over a week" after JR commenced staying there over night, the applicant phoned him, "because of the drinking episode" JR had been involved in.

26. JR's mother gave evidence that whilst JR was undergoing drug rehabilitation in July or August 1994, he called her and told her of a counselling session he had recently had. She said in a statement to police that JR told her that he had told the counsellor that he had been sexually abused, "when I was at Ginninderra High and they sent me to the farm". JR declined, however, to discuss the matter further with her. He did not say that the applicant had been the source of the abuse.

27. Departmental records confirmed that the facility at Dairy Flat opened in 1985. The applicant was employed as the sole teacher (Band 1) at the facility from 4 April 1985 until 17 October 1987. He lived on the premises with his family. He took recreation leave during "normal school holidays". There were no students there at those times.

28. JR was recorded as having been a student at Ginninderra High from 26 March 1986 until 1 June 1987. There were no records found recording JR's attendance at Dairy Flat farm. No records were produced indicating JR's difficulties at school or, indeed, as to the other student, later identified as Patrick Weir.

29. Detective Senior Constable Lynch of the New South Wales police gave evidence that JR made a statement to him on 13 June 1996. The statement was completed and formally signed on 25 September 1996. It was the first record of any allegations by JR which named or referred specifically to the applicant.

30. That statement placed JR's attendance at the Dairy Flat farm as being "around the end of year nine".

31. The statement to D C Lynch was substantially in accordance with the evidence JR gave on 3 June 1997 to the Canberra Magistrates Court.

32. A statement was taken from the Principal of Ginninderra High School, Mr D C Southern. He stated that it was not until 29 January 1987 that he first discussed with JR and his parents the possibility of referring JR to the Dairy Flat farm. He considered that the first date of attendance would have been 2 February 1987. His diary was produced. There was a note indicating a scheduled interview with or concerning JR on 29 January 1987. However, there is no note indicating that immediate action was taken.

33. Patrick Ellis Weir (dob 24 November 1972) recalled JR as a fellow student at the Dairy Flat farm. Mr Weir had started year nine in 1987. He said "around June of 1987" it was proposed that he be sent to the Dairy Flat farm. The teacher in charge there he knew as "Dave". JR was, he knew, then a year ten student at Ginninderra High. He confirmed that they were both expelled from Dairy Flat for drinking alcoholic liquor.

34. The applicant was interviewed by police on 23 September 1996. He strenuously denied JR's allegations. The applicant also denied an allegation which had not been made by JR, though it was put by police, to the effect that the second incident had occurred the next night after the theft of meat and obtaining of alcoholic drinks (presumably by JR and Patrick Weir). However, the substance of the allegation of sexual abuse, apart from when it happened, was put to the applicant and denied by him.

35. There was also questioning by police as to why the victim would make such allegations if they were untrue. That questioning was impermissible (see Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1). Nevertheless, the answers given by the applicant are no less a denial of the allegations for that.

36. It is apparent that the allegations made by JR are totally uncorroborated. The mere presence of JR at the farm is not disputed but does not provide corroboration.

37. The Evidence Act 1995 (Cth) s 164 abolishes the rule of practice requiring a warning against acting on the uncorroborated evidence of a complainant in a sexual assault case (see also s 76F Evidence Act 1971 (ACT)). However, the delay in making complaint, coupled with the evidence of JR indicating that he had a motive for resentment of the applicant for causing or contributing to his ultimate expulsion from school, together with the apparent inconsistencies in his evidence, will give rise to a need for some warning concerning his uncorroborated evidence (see, for example, Longman v R [1989] HCA 60; (1989) 168 CLR 79).

38. On 19 August 1997 the matter was placed in the Supreme Court criminal list. It was then, absent an election under s 61A Supreme Court Act (1993) (ACT) (election for trial by judge alone), placed in the progressive list to be allocated a trial date.

39. On 17 July 1998, the accused was granted leave to issue a subpoena, on short notice, directed to the ACT Education and Training Department for relevant records. Otherwise, the matter was said to be ready for trial.

40. On 30 July 1998, due to difficulties obtaining relevant records, and a significant amendment to the indictment made by the Crown the trial date was vacated. The matter was relisted for directions at 9.30am on 4 September 1998.

41. On that date, certain documents were produced and access to them given to the parties. Further documents were produced and access given on 30 October 1998.

42. There was a further mention on 6 November 1998. Counsel for the applicant then indicated that the applicant proposed to seek a permanent stay of proceedings.

43. As referred to above, on 29 July 1998, a new indictment was presented, to replace the previous draft indictment. The significant amendment made to the previous allegations was that the date on which the offences were alleged to have taken place was changed from "between 19 May 1986 and 12 December 1986" to "between 28 January 1987 and 2 June 1987".

44. The latter alteration rendered the evidence given at committal by JR completely incapable of supporting that amended allegation.

45. The reason for the alteration of those dates was not made clear to me.

46. It is clear that, despite extensive searches, no record has been found relating to attendances at Dairy Flat by students staying overnight or attending day programs, though such records no doubt existed at one time.

47. There is a note on a departmental file relating to the applicant which, on 22 October 1987, records that JR and Patrick Weir had stayed at the Dairy Flat facility "overnight". Unfortunately, though that stay may be assumed to have been earlier than October 1987 (JR left school on 1 June 1987), it is not specific as to whether it was during 1986 or 1987. JR is referred to as one of the "students from Ginninderra High" who had stayed overnight at the facility. The note does no better than indicate that JR's stay at Dairy Flat had occurred between 25 March 1986 and 1 June 1987.

48. The applicant deposes that, during 1987, an exchange student, Basil Verato, resided with his family. JR makes no mention of such a person. Of course, Patrick Weir was at Dairy Flat during the week following the alleged offences according to JR. Mr Weir does not refer to a person such as Mr Verato either, though he was not questioned about it. No doubt this was because he was assumed to have been talking about an event in 1986 and was in error in referring to 1987. Mr Verato was a Solomon Islander. His presence was likely to be noticed.

49. The applicant's son, Andrew, and Basil Verato both attended Holder High School. That school is now closed. Its records have been lost. Similarly, records relating to leave and other absences from duty relating to the applicant kept at Ginninderra High School have also been destroyed or lost, though his personnel and complaints file has been produced.

Applicant's Submissions

50. The applicant first points to the serious inconsistencies as to the time period within which the offences allegedly occurred. The evidence as it stood at the end of the committal had JR at Dairy Flat in the latter half of 1986 "towards the end of year nine". That was corroborated by JR's father.

51. It was not disputed by the applicant in his record of interview that JR had attended at Dairy Flat farm during 1986. He was, of course, being questioned about events about ten years before without the benefit of any contemporary record.

52. There is a note of discord in the committal evidence concerning the dates between which the offences allegedly occurred afforded by Mr Southern's evidence as well as that of Patrick Weir. Mr Southern believed JR "would have" started at Dairy Flat "on Monday 2 February 1987". That was "from looking at my diaries". One diary for 1987 kept by Mr Southern was produced. It does not really assist. A class roll for "Drama portable" for 1987 was produced. It shows that JR was present at classes on 2 February 1987 and then continuously up to 26 February 1987. Continuous absences (not indicated as authorised) commenced on Thursday, 5 March to 6 March, 10 March to 19 March, Friday 3 April through to 1 May 1987 . From 19 May to JR's withdrawal from school on 1 June 1987 he is shown as on leave ("L").

53. Patrick Weir stated that he attended Dairy Flat "around June of 1987". He did not give evidence at committal. The basis for that statement was left unclear. May 1987 could be regarded as "around June of 1987".

54. Term two commenced in 1987, according to published diaries, on 18 May. The class roll also reflects that. From then until 1 June, the roll shows JR in attendance at school only on 18 May. For the remainder of that week he is marked as "L". That indicates "on leave", according to Mr Southern's affidavit. It is consistent with that marking that JR was then in attendance at Dairy Flat. The entries in the roll are not consistent with JR returning to Ginninderra High after his expulsion from Dairy Flat. There were no more than two school weeks available before JR's withdrawal from school for him to have attended Dairy Flat. It is likely that his misconduct at Dairy Flat lead to his final withdrawal from school.

55. There was no evidence of any contemporaneous complaint. There was, in October 1987, an inquiry, sparked by complaints now accepted to have been unfounded, which revealed that both JR and Patrick Weir stayed overnight at Dairy Flat at some time before October 1987. That record does not, unfortunately, indicate that they stayed together nor whether it was during 1986 or 1987, though the complaints then under consideration referred to dates in each of those years.

56. Patrick Weir has never complained of the applicant's conduct towards him. Nor does he give any evidence of any complaint by JR.

57. The applicant submits that JR's revelations as to prior sexual abuse, albeit without detail, during drug and alcohol counselling sessions in the course of a rehabilitation program (Kadesh House) raises a concern as to whether this is a case of "recovered memory". If it is, of course, it must be viewed with considerable caution.

58. Although Aitchison v DPP (1996) 90 ACrimR 448; 135 FLR 217 was cited as relating to "recovered memory" evidence, it does not do so. However, in both R v CPK (NSWCCA, Gleeson CJ, Clarke and Hulme JJA, 21 June 1995, unreported) and R v Eishauer (NSWCCA, Smart, Simpson and Sperling JJ, 19 September 1997, unreported) such evidence was recognised as potentially unsafe (see also Australian Law Reform Committee, Reform 69 "The Subconscious on the Stand").

59. The matter of prior sexual abuse was referred to in the notes kept by JR's counsellor. It must have been expressly mentioned by JR though he denies referring to that subject matter. However, JR also denied telling his mother about any such matter and she had an apparently clear recollection of him doing so. In none of those statements is JR's memory referred to as "recovered".

60. Accordingly, whilst a need for caution before accepting JR's evidence arises from the matters already referred to, it is not because of any "recovered memory" syndrome.

61. The applicant founds his claim to a stay on the dual propositions that he has suffered irreparable prejudice by reason of the loss of vital evidence in consequence of the delay and that such prejudice has been exacerbated by reason of the lack of diligence on the part of the Crown.

Prejudice to the Applicant

62. That the applicant is no longer able to reconstruct his whereabouts during 1987 within the time frame referred to in the proposed indictment, is undoubted. Due search has been made. No relevant documents have been discovered.

63. Most fundamental, of course, is the absence of the identification of any period of three consecutive weeks of authorised absence in 1987 during which JR could have been assigned to Dairy Flat. The only records available make it unlikely that there was or could have been any such period. There are, however, two consecutive weeks when JR was on leave from normal classes. That is, of course, inconsistent with JR's evidence, but it is the only possible time frame consistent with such records as remain when JR could have been at Dairy Flat. As the Crown alleges that only the first half of 1987 is now relevant, it is not necessary to consider whether any of the latter part of 1986 provides any such possible time frame.

Reasonable diligence by the Crown

64. The applicant points to the allegations against him, subsequently dismissed, investigated as early as October 1987. On 22 October 1987, the applicant's file, held by his employer, identified both JR and Patrick Weir as boys who had stayed overnight at Dairy Flat during the time period the subject of the other, subsequently rejected, allegations. One of those matters was the subject of court proceedings.

65. It is not clear whether police or departmental officers questioned JR or Patrick Weir in the course of investigating those allegations, but, clearly, it would have been a serious defect in that investigation if those potential witnesses were not questioned as to their experience and observations whilst at Dairy Flat.

66. Given the seriousness of the allegations made in October 1987 it seems inconceivable that inquiries would not have been made of other students in a like situation to the two (not JR or Patrick Weir) who had made allegations. At least records would then have existed and been available to be accessed to determine relevant dates, even had their statements contained no incriminatory matter.

Should a permanent stay be granted?

67. Obviously, the case for the Crown has been weakened by the unexplained alteration in the time period within which it is said the offences occurred. Of course, it would be open to conclude that, despite his apparent certainty as to the time period, JR was mistaken as to that detail but otherwise accurate. Nevertheless, that obvious discrepancy substantially increases the prospect of acquittal.

68. That damage to the Crown case does not, of course, lessen the injustice to the applicant. If anything, it compounds it.

69. As Gibbs ACJ and Mason J said in Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75, 96-97:

"The view that there can be no injustice or unfairness to an accused in putting him on trial without reasonable grounds merely because he will be ultimately acquitted ... has been emphatically rejected, as indeed it should be."

70. Gallop J in R v Reeves (1994) 122 ACTR 1 noted that where evidence has been destroyed which might be relevant to support an hypothesis consistent with innocence, whether it was destroyed in good faith or not, a stay may be required to prevent an unfair trial. The mere fact that relevant, possibly exculpatory evidence has been lost or destroyed does not inevitably require a stay (see Doyle v Leroux (1981) Crim Law Review 631).

71. Nevertheless, in Reeves' case, Gallop J concluded that:

"...the destruction of the documents, after the institution of the criminal proceedings against him [Reeves], has created a situation whereby he is deprived of properly advancing a contesting hypothesis consistent with innocence. For instance, the accused may have been able to show, by reference to all the source material, that full disclosure of all relevant matters was taken into account in the completion of the financial statements and that they are not false and misleading. At least he might have been able to prove that he had no knowledge that the financial statements were false and misleading."(23)

72. Thus as, in his Honour's view, there was nothing a trial judge could do to alleviate that unfairness, a stay was ordered.

73. R v Davis (1995) 57 FCR 512 was also relied upon. In that case, Gallop J had ordered a stay of fourteen charges of sexual indecency against a medical practitioner. They related to allegations made by thirteen former patients. The accused had been refused a stay of collateral medical board proceedings. There was considerable delay, up to thirty-five years, in bringing the allegations. Of more significance, records of attendances on the former patients, from which some relevant information might have been gleaned, had been destroyed.

74. The Full Court, on appeal, noted that it was appropriate to draw a distinction between civil (albeit disciplinary proceedings) and criminal proceedings. In the latter the standard of proof is higher and the consequences to the subject far greater. It concurred with Gallop J in holding that the grant of a stay does not depend on delay alone (though it was considerable). The significant element was that there was special prejudice, additional to that resulting from delay, caused by the destruction of patient records.

75. The effect of destruction of records in the present case is the lessening, to the point of destruction, of the applicant's ability to establish, at least as a reasonable hypothesis, an alibi for the two days alleged by JR to be those on which the sexual assaults occurred.

76. Further, it would add to that injustice if the prosecution was to be permitted further to shift its position, so as to concede that JR was mistaken as to those details now found to be inconsistent with the evidence as it now stands.

77. Aitchison v DPP (supra) was referred to as supporting a stay. It is not of any real assistance. The decisive matter in that case, in my view, was that the applicant had already been tried and punished for similar acts. The further trial, though it may have afforded personal satisfaction to the victim if a conviction had been recorded, served no useful public purpose. It would not have further stigmatised the offender, nor would it have added to the punishment already imposed on him.

78. The Crown submitted that the inconsistencies in the Crown case would not warrant a stay.

79. I agree with that submission, though it does not mean that the strength, or lack of it, of the Crown case will not be relevant in the overall decision.

80. Delay and inconsistencies can usually be dealt with by way of an appropriate direction.

81. Jones v R [1997] HCA 12; (1997) 191 CLR 439 was relied upon as illustrating that point. It does not, however, support that proposition. Instead, it illustrates that a Crown case may, by reason of inconsistencies in a complainant's evidence, be so unsafe and unsatisfactory that any conviction recorded must be set aside.

82. Of course a trial judge may not instruct or enter a verdict by direction simply because he or she considers the Crown case to be unsafe and unsatisfactory (see Doney v R [1990] HCA 51; (1990) 171 CLR 207), though an appellate court may do so.

83. Williams v R [1999] NSWCCA 9; (1999) 104 ACrimR 260 illustrates that inconsistencies in a complainant's evidence do not imply that a conviction based on that evidence will inevitably be regarded as unsafe and unsatisfactory.

84. That does not mean that the fact that the Crown case appears unsafe and unsatisfactory, albeit sufficient to go to a jury, will not be relevant to whether a stay should be granted, though that circumstance is not sufficient in itself to require that a stay be granted.

85. The Crown submits that even if there was a lack of reasonable diligence in investigating the matter in 1987, that is not a ground for a stay now to be granted.

86. I agree that errors in investigation, such as, in retrospect, may now be perceived, would not ordinarily lead to, nor very strongly support, a stay.

87. In general, the Crown submits that there have been many cases in which, though allegations of sexual abuse have been made long after the events complained of with inevitable lack of corroborative detail, convictions have been obtained and upheld on appeal (for example, Williams v R (supra)). So also, it must be said, have there been many cases where the opposite result has followed. Jones v R (supra) was such a case.

88. The community interest in the proper disposal of charges involving serious offences is, the Crown submits, most significant. As against that, of course, is the community interest in ensuring that persons are not unfairly oppressed by the criminal process.

89. It should be emphasised that, whilst delay would rarely by itself suffice to overwhelm the considerations pointed to by the Crown, delay may enliven the discretion to grant a stay. It inevitably creates prejudice to a fair trial civil or criminal. The words of McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, at 552-3, albeit related to delay in civil matters presumptively barred by reference to a statutory time bar, are relevant to the effect of delay in all cases,

"The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost (Jones v Bellgrove Properties Ltd [1949] 2 KB 700 at 704). Second it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed (RB Policies at Lloyd's v Butler [1950] 1 KB 76 at 81-82). Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them (New South Wales Law Reform Commission, Limitation of Actions for Personal Injury Claims (1986) LRC 50, p 3; Law Reform Commission of Western Australia, Limitation and Notice of Actions, Discussion Paper (1992) Project No 36 Pt II p 11). Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period (In Limitation of Actions for Latent Personal Injuries (1992) Report No 69, p 10, the Law Reform Commissioner of Tasmania said: "The need for certainty can be justified in many cases. For example, manufacturers need to be able to `close their books' and calculate the potential liability of their business enterprise with some degree of certainty before embarking on future development. Under modern circumstances, an award of damages compensation may be so large as to jeopardise the financial viability of a business. The threat of open-ended liability from unforeseen claims may be an unreasonable burden on business. Limitation periods may allow for more accurate and certain assessment of potential liability."). As the New South Wales Law Reform Commission has pointed out (New South Wales Law Reform Commission, Limitation of Actions for Personal Injury Claims (1986) LRC 50, p 3):

"The potential defendant is thus able to make the most productive use of his or her resources (Kelley, "The Discovery Rule for Personal Injury Statutes of Limitations: Reflections on the British Experience", Wayne Law Review, vol 24 (1978) 1641, at p 1644) and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided ("Developments in the Law, Statutes of Limitations", Harvard Law Review, vol 63 (1950) 1177, at p 1185). To that extent the public interest is also served."

Even where the cause of action relates to personal injuries (The vast majority of defendants in personal injury actions are insured. Consequently, the amount of the verdict will not be met by the defendant. Nevertheless, it is a charge on the revenue of the insurer for the relevant year and is ultimately met by the shareholders of the insurer or the individual proprietors of the insurance business if the insurer is not incorporated. Although the burden of the plaintiff's claim is spread in such cases, the consequences for the proprietors of the insurance business can be significant. When a large number of claims are allowed to be brought out of time, as has been the case in respect of some types of injuries or in some industries in recent years, the financial consequences for an insurer can be drastic.), it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible (New South Wales Law Reform Commission, Limitation of Actions for Personal Injury Claims, (1986) LRC 50, p 3; Law Reform Commission of Western Australia, Limitation and Notice of Actions, Discussion Paper (1992) Project No 36 Pt II p 11 .)."

90. The effect of delay has clear effects in the present case. JR has given an account in the course of the committal which, apart from the acts constituting the offences, the Crown now concedes to be unreliable. There are at least three, possibly four, time periods when it was possible, as opposed to impossible, for the offences to have occurred at Dairy Flat. Records which could establish which of those periods was the period referred to by JR, if any of them is, have been lost or destroyed. That includes records relevant to the whereabouts of the applicant during those periods. Even without that issue, the evidence of JR itself calls for corroboration for reasons other than delay in complaint and his status as a complainant of sexual assault. It is no longer the case (assuming that it ever was) that delay in complaint or the fact that complaint is made of a sexual offence, places JR into a special category of unreliable witnesses. However, the specific inconsistencies attending his testimony, together with the lack of any records which otherwise would be expected to assist in assessing the veracity of it, coupled with the uncertainty as to the role of counselling upon the supposed recollection and the surrounding circumstances, would necessitate a corroboration direction in relation to his evidence.

91. By consent, the diary of Mr Southern, Principal of Ginninderra High School at the relevant time, was tendered. So also was the account book for the Dairy Flat facility kept by the applicant. The latter contains no entry capable of any relevance. The former, for the year 1987, contains only two entries of possible relevance. The first is for 29 January 1987. The name "JR" appears. Whether that was more than an interview to review JR's commencement of year ten, perhaps with a view to meeting his difficulties if later required, is unclear. On 26 May 1987 at "8.30" the name "Patrick Weir" appears. This is more significant. It coincides with the last week JR was at school but on authorised leave (according to the class roll of Ms Shaw). That material suggests that the interview with JR did not immediately precede the latter's attendance at Dairy Flat but that Patrick Weir's interview did immediately precede his attendance at Dairy Flat.

92. That diary is consistent with the view that if any assault on JR occurred in 1987 only 19 to 22 May, or possibly 25 May, are available as dates. That interpretation of the class roll is supported by the affidavit of Mr Southern dated 8 May 2000.

93. No doubt the material could be otherwise construed. If the issue was whether, on the evidence to be led by the Crown, a jury properly instructed could lawfully convict, even if a verdict so entered would, in the view of the trial judge, be unsafe and unsatisfactory, then clearly, the case is sufficient to be submitted to a tribunal of fact. It is not oppressive, by itself, for such a case to be brought. However, it is relevant on an application such as the present, as supporting though not requiring a stay, that the Crown case is far from compelling.

94. It is also relevant to consider the five factors identified as relevant by Deane J in Jago's case.

(i) Length of the delay

There was no complaint of misconduct against the applicant in respect of these matters until June 1996. He was not told of the complaint until September 1996. The trial could not be held less than 13 years after the events alleged.

(ii) Reasons given to explain or justify the delay

There is no explanation for the failure of JR to come forward before June 1996. It is not clear whether he became aware of inquiries into the conduct of the applicant towards students staying at Dairy Flat. At the very least, and the applicant's personnel file confirms this, JR and Patrick Weir were known by the Education Department officials to have attended overnight at Dairy Flat during the relevant period. They ought during that investigation to have been asked if they had, or knew of, any complaint concerning the applicant's conduct. There is no explanation for that failure.

The delay since September 1996 can be attributed to the inherent difficulty of investigating matters relevant to the allegations after the lapse of time referred to since the events occurred, as well as the unexplained initial, now allegedly erroneous, particularisation of the latter part of 1986 as the date of the offences.

(iii) The accused's responsibility for and past attitude to the delay

The applicant has not been shown to have been aware of JR's allegations before September 1996. It is not alleged that the applicant urged JR to keep the matter secret or had any continuing power or influence over him between the date of the alleged offences and June 1996.

(iv) Proven or likely prejudice to the fair trial of the accused.

There is much force in this consideration. A more prompt reporting, say during 1987, would at least have clarified the dates between which the offences allegedly occurred.

As now appears, those dates can be narrowed down, albeit without great certainty, as 19 to 22 May 1987. However, in 1987 supporting records would have existed to confirm 19 May to 29 May 1987 as the dates between which JR was on leave from classes to attend Dairy Flat.

Further, more proximately to the alleged events, the applicant would, by reference to documents then available, have been better able to demonstrate if it was so, that he had no opportunity to commit the offences alleged. He was able to do this in relation to matters drawn to his attention in October 1987. It cannot be said that he could not have done likewise in relation to JR.

It is impermissible to support JR's allegations by asking "Why would he now complain if his allegations are not at least believed by him to be true?" (see Palmer v R (supra). However, it is clear that, had he complained at the time other complaints were made, collusion between boys whose conduct the applicant had called in question could not be excluded as a motive for false complaint. However, whilst that could not be said of JR after this delay, there are other are possible motives for a false allegation so long after the event.

The first is that, given JR's unfortunate history, counselling, albeit unwittingly, may have caused him to attribute his difficulties to misconduct of the kind he now alleges. The second is that now to blame the applicant shifts responsibility away from himself for his past difficulties as well as supporting a claim for criminal injuries compensation.

It is unnecessary, indeed not possible, to make any finding that JR's accusation is not made in good faith. It is, simply, not possible to find that it was so made.

There is, in my mind, considerable and irreparable unfair prejudice to the applicant if this prosecution proceeds for the reasons already stated. They cannot be cured by directions or warnings, though that would help.

(v) The public interest in the disposition of charges of serious offences and the conviction of offenders

The offences alleged, particularly those relating to the second incident, are very serious. The applicant has no prior convictions for any such conduct. If convicted, he would be exposed as a sexual predator on a student in his charge. That would affect his future employment. Even as a person previously accused, albeit that he has been cleared of those allegations, it is obvious that he will not teach again. The personnel file from the Department makes it clear that even unproved allegations of this kind are regarded, rightly or wrongly, as a bar to future employment as a teacher.

It cannot be said, however, that no useful public purpose would be served in the trial of these allegations.

General

95. The balance is a difficult one. The delay itself is not so extreme as in some cases. On the other hand, the prejudice to the fair trial of the applicant arising from loss of records which should have been kept impresses itself upon me as so strong that, given the other difficulties associated with the Crown case, it would be an abuse of the process of this Court for the Crown to be permitted to proceed further on this amended indictment.

96. I order that proceedings upon the proposed indictment be permanently stayed.

I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 20 July 2000

Counsel for the applicant: Mr A Doig

Solicitor for the applicant: Legal Aid Office (ACT)

Counsel for the respondent: Mr K Archer

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 6 and 10 December 1999 & 3 May 2000

Date of judgment: 20 July 2000