Trial judge should have assessed prosecution evidence in application to dismiss 45-year-old charges of sexual abuse

O'Donnell J (majority decision): Development of the law - child sexual abuse - inability of children to make complaint - consequence of abuse - lapse of time - fairness of process - judicial notice of reluctance of victims to come forward - whether real or serious risk of an unfair trial - whether matter should be left to trial judge to determine - function of trial judge - fairness of process - allegation of abuse by uncle in about 1971-72 - death of witness to surrounding incidents - evidence that might have been given by deceased witness - cross examination of accused -

"There is also no doubt that the unusual facts of this case mean that M.Cy. was a potential witness of considerable importance. Again, however, on its own, I do not think that the absence of M.Cy., at least without culpability on the part of the prosecution, can be said to be decisive in this case. She or any other witness could have been unavailable, whether through her own decision, or possibly death, even if the trial had occurred within a very short period after the events concerned. That possibility arises in any case, and trials are not rendered unfair or unjust simply because of the absence of a witness whose evidence, although relevant, is not an essential proof."

"Taken in the round, therefore, I am, for my part, unable to accept that the evidence in this regard, taken together with the admissions evidence as analysed by O’Malley J., should be characterised as giving rise to a real possibility that M.Cy. might have been in a position to give evidence “highly favourable” to the defence, which would, moreover, have survived any challenge to its credibility, with the result that the defence had lost not just an opportunity, but the real possibility of an obviously useful line of defence. That is not only speculative, but is a speculation which, at least in my view, is remote."

Charleton J (concurring): Delay in trial - lack of limitation period - order of prohibition - decision of DPP to proceed to prosecute - presumption that trial will be held in due course of law - onus of proof in seeking to stop criminal trial - whether real risk of unfair trial -

"The reason for the aphorism ‘justice delayed is justice denied’ is that as life goes on from the events that generate litigation, not only memories fade but items are thrown out and relevant papers are discarded or mislaid. For older cases, while the courts are striving for a perfect trial, the reality is that what the judicial system must seek is a trial that is good enough to meet the exacting standard that the administration of justice requires."

"In terms of the relevant facts here, the confession of the accused to his son carried a high degree of reliability. It is appropriate to ask whether a trial should be stopped in circumstances where a reliable and admissible admission of guilt by the accused has been made. "

O'Malley J (concurring): Exercise by trial judge of jurisdiction to prevent a trial where there was evidence of unfairness - trial conducted 45 years after alleged offence - death of witness - role of trial judge in assessing prosecution case - applicable principles - materiality of evidence of missing witness -

"The whole point of the jurisdiction is that there will be cases where the prosecution has in fact presented evidence that should, by normal standards, go to the jury but where for some identified reason it is unfair to let the matter proceed. In the context of historic prosecutions, the unfairness may arise because the ability of the accused has been compromised by the lapse of time, to the point that he or she would not be receiving a fair trial."

"In the instant case, there was supportive evidence on a range of issues raised in cross-examination, such as the presence of the complainant and her siblings in the house, and the occurrence of a row during which C.C. produced the shotgun. More significantly, in my view, there was corroboration in the form of clear and effectively unchallenged evidence of an admission of criminal behaviour against the complainant. Such evidence is sufficient to dispose of the claim that the appellant was unable to defend himself against the charges."

Clarke CJ (dissenting): Approach of courts to long delayed criminal prosecutions - grant of leave to appeal - extent of burden on an accused person to argue that the trial is unfair because the lapse of time has resulted in a witness who might have been of assistance to the defence - two allegations of sexual assault - rape - allegation that deceased witness had assisted in one of the offences - central importance of deceased witness - 'missed opportunity for the defence' - legal authorities - procedure to be adopted by trial judge.

"Ultimately, the trial judge must determine whether the trial meets the standard of a fair trial. It is important to emphasise that a fair trial does not necessarily have to be a perfect trial. Almost all trials may potentially run without some possibly relevant evidence being available. The question of whether a trial is fair does, as the Court of Appeal considered, require an overall approach. If a theoretical possibility that some tangentially material piece of evidence is not available were to render a trial unfair, it would be difficult to envisage many cases in which there could ever be a fair trial. Something more substantial is required in order that a trial can be considered to be unfair."

"The question is not whether the relevant missing evidence might have shown the improbability of the accused committing the offence in question (although obviously if it did so demonstrate, then it would be hard to conclude that the trial was fair). The test is, as has been emphasised, whether the missing evidence would have been likely to have provided a real possibility of an obviously useful line of defence. That line of defence might or might not have succeeded. But the problem is that the very fact that the evidence was missing means that we will never know what view a jury might have taken had the evidence been present. It is for the trial judge to assess, in the light of the prosecution case and such evidence as there may be as to the content of the missing evidence, whether the S.B.test is satisfied."

"In those circumstances, I find it impossible not to conclude that the defence in this case were deprived of a realistic possibility of an obviously useful line of defence. Whether that defence might or might not have persuaded the jury to acquit is not the question. The issue is as to whether there was a realistic basis that it might have made a difference. While, for the reasons already analysed, that question is far from clear cut, it seems to me that, having regard to the S.B. test, the balance must lie on the side of a conclusion that the trial judge should have concluded that it was unfair to continue with the trial in all the circumstances of this case."