Sexual Matter – Permanent Stay of Indictment

A stay of proceedings is a ruling by the court in civil and criminal procedure, halting further legal process in a trial or other legal proceeding, either temporarily or permanently. This case study relates to a sexual offence matter.

Background

We act for a client who is married and more than two decades ago, the couple provided respite care as full-time foster parents. It was through this respite care that our client met the complainant.

The complainant had many foster carers and at the time she was between five and six years old.

The complainant alleged that she was sexually abused by a man and until recently she could not recall who the perpetrator was.

When reporting sexual offences to police in 2017, the complainant was able to particularise two precise incidents of sexual abuse at Maryborough.  Otherwise, she says that the same thing happened to her in excess of 10 times.  So regular was the sexual abuse, the complainant concluded that it must have been done by someone who was regularly in contact with her, such as her foster carers.

In 2016, our client’s wife contacted the complainant in an attempt to catch up. She sent her a photo of the couple and the complainant.

Afterwards, the complainant thought that she remembered our client and he appeared similar to the man who had committed the sexual offences during her time in foster care in Maryborough.

The Complaint

The complainant went to police to make a complaint for the sexual offences.  She spoke with a police officer and during that conversation expressed concern that she may have the wrong person. That police officer informed her that she needed to be certain it was the right person before proceeding. At this point she declined to pursue a formal complaint.

A few months later, another police officer contacted the complainant.  They met and during that conversation the police officer convinced the complainant to make a complaint in relation to the sexual offences.  It was unknown at this point what changed her mind.

Once our client was charged, we received the brief of evidence and determined that cross-examination of the complainant was required (at a committal hearing) to determine the nature of the second conversation with police.

We made an application to cross-examine the complainant which was rejected by the prosecution.  We then made an application at a subsequent directions hearing in Maryborough and the Magistrate was persuaded that cross-examination was necessary and in the interests of justice.

During the committal hearing, it was established that the conduct of the police officer in relation to the second conversation was improper.

Application for Stay

Once the matter reached the District Court we were able to apply before a Judge for an order to permanently stay the indictment.  The application was advanced on two bases:

• The first basis was that our client could not receive a fair trial because of the police officer’s impermissible conversation with the complainant; and
• That allowing the trial to continue would give curial approval to the wrongdoing of the police officer.

Power to Stay the Indictment

The court has power to stay an indictment to prevent an abuse of its process.   This power exists to prevent a misuse of the court’s procedure in a way which would be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.

Unfairness

If not for the improper second conversation, the reliability, credibility and weight of the complainant’s identification evidence could have been properly tested before a jury. This could have been accompanied by a judicial direction of the dangers associated with such evidence.  We argued that this was no longer possible and therefore our client could not receive a fair trial.

Ultimately after lengthy legal argument, the court agreed and our client’s indictment was permanently stayed.

This case study serves as a reminder of the necessity for strong legal representation in sexual offences matters, where the possibility exists that proposed evidence is prejudicial to a fair trial.

WARNING:

This is a summary of an actual case. Details have been omitted to protect the privacy of our client. We select cases which are informative and no guarantee is provided that similar results are achievable in all cases. Every case is different and you should obtain legal advice specific to your matter and circumstances.