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Police censured as Judge grants permanent stay

A District Court Judge has delivered a scathing assessment of police conduct while taking the rare step of granting an application for a permanent stay of proceedings.

In his 67-page decision delivered on Thursday in Ipswich, Judge Horneman-Wren SC found there were so many defects in a police investigation of alleged sex offences against a child that continuing the trial would be so unfair or oppressive as to constitute an abuse of process.

“Permanently staying an indictment is relatively rare; and a step not lightly taken,” he said.

“There are, however, some cases in which the ability of the court to safeguard the fairness of the trial of an accused person is so compromised that any other step would be onto a path to injustice.

“This is such a case.”

“HTD” was charged with one count of maintaining an unlawful sexual relationship with a child, three counts of aggravated indecent treatment and two counts of rape of the same child, between October 2016 and November 2019.

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HTD’s application for a permanent stay pointed to “an extraordinarily inadequate police investigation” in which police failed to:

  • obtain and retain the complainant’s old phone, or a record of its contents, despite being told that it contained relevant evidence;
  • obtain and retain the complainant’s laptop, or a record of its contents, despite being told that it contained relevant evidence;
  • obtain the complainant’s diary, despite being told that there were concerns about its physical appearance (including ripped out pages and backdated entries);
  • obtain and retain a clothing receipt, despite being told that it proved the complainant was not wearing the clothes she claimed she was wearing during several counts; and
  • retain photographs of the complainant’s Snapchat messages, despite there being reason to believe they were exculpatory.

“The applicant contended that the police and prosecution had adopted a position which saw the accused in a criminal trial see only the evidence his accuser was willing to provide,” Judge Horneman-Wren said.

“He contended that the failure to obtain and disclose the relevant messages was grossly unfair and was tantamount to a refusal to properly investigate the case, allowing the prosecution to circumvent its obligation to disclose the messages in a proper form.

“The applicant contended that to permit that to occur in the context of those other circumstances was apt to bring the administration justice into disrepute.”

Judge Horneman-Wren said that at the initial hearing on 15 March and 13 April last year, evidence provided by two police officers who led the investigation “demonstrated substantial and concerning deficiencies in the investigation”, and that one officer had deliberately misled the court.

He said the complainant’s disposal of electronic devices had denied the applicant the opportunity to test the complainant’s credibility, and that she had “given wildly inconsistent statements about the circumstances of their disposal, including demonstrably false accounts”.

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“The evidence of the complainant raised considerable concerns as to: the integrity of pieces of evidence provided to police by her; the absence of property which may have contained relevant evidence; her dealings with property which may now contain, or which may have in the past contained, relevant evidence; and the credibility and reliability of her evidence about those matters,” he said.

Judge Horneman-Wren said the Crown’s submission that the investigation, “like many investigations, was not perfect”, was an “exquisite understatement”.

“In my view, the deficiencies in this investigation and the loss of relevant evidence, the former having facilitated the latter, are so many and so prejudicial that the continued prosecution would be an abuse of process,” he said.

He said this was particularly so when available evidence had clearly been tampered with by the complainant.

“The trial has simply been rendered unfair in fundamental ways,” he said.

“There is nothing which the trial judge could do in the conduct of the trial, or in any directions which might be given to the jury, which could remedy the unfairness.”

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Judge Horneman-Wren said the Crown had conceded that there was prejudice but it was “not so prejudicial as contended by the applicant”; that the applicant’s prospect of a fair trial had been reduced but not “significantly”; and that continuation of the prosecution would be unfair but “not so unfair as to constitute an abuse of process”.

“In short, on the basis of degrees of prejudice and unfairness, the measure of which it makes no attempt to explain or justify, nor suggest any available cure, the Crown contends that an admittedly unfair trial, in which the defendant has admittedly been prejudiced by manifest and manifold “completely unsatisfactory” police failings, should continue,” he said.

“It is an unjustifiable and unsustainable position.

“The indictment should be permanently stayed. I so order.”

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