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District Court 13 August 2015

R v KOSITZIN

[2015] NSWDC 303

Sexual offences
CRIMINAL

Citation: R v Kositzin [2015] NSWDC 303
Court: District Court of New South Wales
Date: 13 August 2015
Judge(s): Judge S Norrish QC

Background

The accused, a 69-year-old man with longstanding and significant health conditions arising from a motor vehicle accident in 1968, faced prosecution for alleged sexual assaults committed upon his then-stepdaughter between January 1982 and July 1983, when she was 12 or 13 years of age. The most recent proposed indictment contained 13 counts, including various forms of sexual assault allegedly occurring on a boat moored at Akuna Bay, in the Hawkesbury River area, and near Mona Vale.

The complainant had made general allegations to a friend and family in July 1983 and was interviewed by police shortly thereafter, but no further investigation followed. She did not provide a detailed statement to police until late 2009 and early 2010. The accused was not approached by police until October 2013 and was served with court attendance notices that same month.

The accused applied for a permanent stay of proceedings, arguing that a combination of factors, including the substantial delay, his poor health and cognitive limitations, the unavailability of witnesses, and the loss of potentially relevant evidence, rendered a fair trial impossible and no curative directions could remedy the position. The Director of Public Prosecutions opposed the application.

Legal Issues

  • Whether the combination of extensive delay, the applicant's serious health conditions, absent witnesses, and lost evidence constituted a fundamental defect going to the root of the trial that could not be cured by direction, justifying a permanent stay of proceedings.
  • Whether the applicant's physical and cognitive disabilities were so severe as to render any proposed trial materially unfair.
  • Whether the delays in the police investigation between 2010 and 2013 caused identifiable prejudice to the accused beyond the already significant delay since 1983.
  • Whether the unavailability of specific witnesses and records, including the death of the complainant's husband, the absence of mooring records, and missing school and employment records, went to the heart of the allegations such that no direction could remedy the disadvantage.

Decision

Issue 1: The applicable legal standard for a permanent stay

The court confirmed that a permanent stay is a remedy reserved for exceptional cases. Drawing on Jago v District Court of New South Wales (1989) 168 CLR 23, Walton v Gardiner (1993) 177 CLR 378, and R v Glennan (1992) 173 CLR 592, the court held that a stay requires a fundamental defect going to the root of the trial of such a nature that nothing a trial judge can do can relieve against the unfair consequences (at [24]-[26]). Weighing the fairness to the accused against the public interest in the prosecution of serious offences and public confidence in the administration of justice was required (at [25], [27]).

Issue 2: The applicant's health conditions

The court accepted that the accused suffered significant and longstanding physical and cognitive difficulties, including brain damage, speech disturbance, epilepsy, and other serious conditions. However, those conditions were found not to be so profound as to render the proposed trial materially unfair (at [83]). The court placed considerable weight on Dr Banks' conclusion that the accused demonstrated an intact understanding of court proceedings and the allegations against him, was capable of giving instructions, and could participate in the hearing in a substantive way, notwithstanding the need for additional time and patience (at [86]-[87]). The court noted that the acknowledged tension between Dr Banks' clinical observations and his ultimate conclusions weighed against the applicant's position (at [85]). The court further observed that the accused's disabilities were substantially present at the time of the alleged offences and had only somewhat deteriorated since then (at [84], [95]). Suitable trial arrangements, including breaks, modified seating, explanation to the jury, and appropriate directions, were available to accommodate the accused's difficulties (at [89]-[90], [94]).

Issue 3: Delay, missing witnesses, and lost evidence

The court found that the delay between 1983 and the complainant's detailed 2010 statement, and the further delay until October 2013 before the accused was charged, were substantial matters warranting criticism. The court was particularly critical of the police investigation between 2010 and 2013, describing the explanations offered as weak and the delay as "unforgivable," while noting this reflected broader systemic issues in how New South Wales Police handled historical sexual assault investigations (at [98]-[99]). Notwithstanding that criticism, the court held the delay did not produce prejudice of the order required to justify a permanent stay (at [107]).

The court held that the missing witnesses and records, including the absence of mooring records, school records, employment records, and the death of the complainant's foster sister in 2007, did not go to the heart of the truth of the allegations given the nature and location of the alleged offending (at [82]). The court found that no missing witness had been shown to be capable of specifically supporting the accused's denial, and in many instances there was no basis to assume what any such witness would have said (at [38], [105]). The only evidence the court identified as materially compromised was the potential evidence of the complainant's deceased husband, whose statement was subject to existing evidentiary mechanisms under the Evidence Act 1995 (at [105]-[106]).

Issue 4: Other factors, including credibility and the occurrence pad

The court found that matters bearing on the complainant's credibility, including her history of drug use, contact with a clairvoyant, psychiatric treatment, and the possibility of reconstructed memory, were quintessentially jury questions and could also be explored through a Basha inquiry if necessary (at [119]-[122]). The occurrence pad entry from 29 July 1983, though its author had little remaining recollection, was available to both parties and contained evidence of a complaint in general terms, a possible retraction, the accused's denial, and other matters that could be explored through examination and appropriate direction (at [109]-[110]). The court concluded that the combination of factors asserted by the applicant did not establish the fundamental defect required, and refused the stay (at [123]-[124]).

Orders Made

  • Application for permanent stay refused.

Key Takeaways

  • A permanent stay of criminal proceedings requires a fundamental defect going to the root of the trial that cannot be cured by judicial direction or other trial management measures; the threshold remains high and the remedy exceptional (at [24]-[26], [123]-[124]).

  • Significant physical and cognitive disability in an accused does not of itself justify a permanent stay where expert evidence establishes the accused retains an intact understanding of the proceedings and the ability to give instructions, and where suitable trial arrangements can accommodate the difficulties (at [83]-[90]).

  • Where missing witnesses and lost records cannot be shown to have any direct bearing on the truth of the allegations, their absence will not ordinarily rise to the level of a fundamental defect, even in the context of substantial delay; appropriate jury directions about forensic disadvantage remain an available remedy (at [82], [76]-[77]).

  • Substantial and unexplained post-complaint investigative delay attracted criticism from the District Court as reflecting systemic failings in the handling of historical sexual assault matters, but that criticism did not translate into identified prejudice sufficient to justify a stay where the delay made no material difference to the evidence ultimately available (at [98]-[99], [107]).

  • Matters going to a complainant's credibility, including drug use, contact with clairvoyants, psychiatric treatment, and possible memory reconstruction, are properly for jury determination rather than grounds for a permanent stay, and can be pursued through cross-examination or, where necessary, a Basha inquiry (at [119]-[122]).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986
- Evidence Act 1995

Cases
- Barton v The Queen (1980) 147 CLR 75
- Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
- Crampton v The Queen (2000) HCA 60
- Jago v District Court of New South Wales (1989) 168 CLR 23
- Longman v The Queen (1989) 168 CLR 79
- R v Glennan (1992) 173 CLR 592
- R v Kesavaragah (1994) 181 CLR 231
- R v Littler [2001] NSWCCA 173
- R v RWO [2002] NSWCCA 133
- R v Tolmie (Unreported, NSWCCA, 7 December 1995)
- TS v R [2014] NSWCCA 174
- The Queen v Edwards [2009] HCA 20
- Walton v Gardiner (1993) 177 CLR 378