Ballard (a pseudonym) v The King
[2024] VSCA 26
•7 March 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0239 |
| HAYDEN BALLARD (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]To avoid the possibility of prejudice to the administration of justice, this judgment has been anonymised by the adoption of a pseudonym in in place of the name of the applicant.
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| JUDGES: | PRIEST and WALKER JJA and CROUCHER AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 March 2024 |
| DATE OF JUDGMENT: | 7 March 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 26 |
| JUDGMENT APPEALED FROM: | DPP v [Ballard] [2023] VCC 2369 (Judge Rozen) |
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CRIMINAL LAW – Interlocutory appeal – Proposed retrial on charges of rape and reckless endangerment after jury discharged without verdict at earlier trial – Whether retrial an abuse of process – Whether trial judge erred in refusing to order a permanent stay.
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| Counsel | |||
| Applicant: | Mr L Richter and Ms L Dubroja | ||
| Respondent: | Ms E Ruddle KC with Ms S Pillai | ||
Solicitors | |||
| Applicant: | Stary Norton Halphen | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA:
Introduction
Between April and June 2023, the applicant faced two trials in the County Court.
The first trial was conducted on an indictment containing 11 charges, and related to two incidents involving two complainants, ‘KA’, and her friend, ‘BBW’. Charges 1 to 5 concerned events which occurred on 28 August 2016 in BBW’s flat, where KA was residing. Each of charges 6 to 11 related to events which occurred on 15 May 2018 at KA’s bayside residence.
Charge 1, aggravated burglary, alleged among other things that the applicant entered BBW’s flat with intent to commit an offence involving an assault. BBW was also the alleged victim on charge 2, causing injury intentionally, and the alternative charge 3, causing injury recklessly. KA was the alleged victim on charge 4, intentionally causing injury, and the alternative charge 5, recklessly causing injury. On arraignment, the applicant pleaded guilty to charges 3 (recklessly causing injury) and 4 (intentionally causing injury). The jury found the applicant not guilty on charge 1 (aggravated burglary) and charge 2 (intentionally causing injury). Given the guilty plea on charge 4, no verdict was taken on the alternative, charge 5.
On each of charges 6 to 11, KA was the alleged victim. The jury acquitted the applicant on charge 6, intentionally causing serious injury, but found him guilty on charge 7, recklessly causing serious injury, and charge 8, rape. A verdict of acquittal was entered by direction on charge 9, rape, after KA failed to give any evidence of the alleged rape. In circumstances I will later refer to, no verdict was taken on charge 10, reckless conduct endangering serious injury, or charge 11, rape.
On 8 November 2023, the applicant applied to the trial judge for a permanent stay of charges 10 and 11.[2] The trial judge refused that application on 18 December 2023 (‘the ruling’ or ‘the interlocutory decision’).
[2]It is anticipated that charges 10 and 11 will become charges 1 and 2 on a new indictment.
Pursuant to certification under s 295(3) of the Criminal Procedure Act 2009 (‘CPA’), given by the trial judge on 21 December 2023, the applicant seeks leave to appeal against the interlocutory decision.
For the reasons that follow, I consider that leave to appeal should be refused.
The second (‘shooting’) trial
Before turning to the circumstances of the first trial, it is convenient to discuss the second trial.
The applicant’s second trial involved four charges: stalking, charge 1; intentionally causing injury to ‘LM’, KA’s new intimate partner, in circumstances of gross violence, charge 2; recklessly causing injury to LM in circumstances of gross violence, charge 3; and reckless conduct endangering persons, charge 4. Each of charges 2, 3 and 4 involved the discharge of a gun. The jury found the applicant guilty of stalking, charge 1, but acquitted him of charges 2, 3 and 4.
KA was the alleged victim on charges 1 and 4, and, as I have indicated, her new partner, LM, who was shot in the thigh, was the alleged victim on charges 2 and 3. For the purposes of charge 4, KA was alleged to have been endangered. The central issue in relation to the shooting charges was the reliability of KA’s evidence identifying the applicant as the shooter. There was also some evidence of identification from LM. To a large extent, the prosecution case relied on the credibility and reliability of the two complainants, especially KA.
Charges 2, 3 and 4 concerned events that occurred on the night of 12 July 2020. It was common ground in the trial that a non-fatal shooting occurred outside KA’s residence, where she lived with LM. KA and LM had confronted a person in the carpark of their apartment block, resulting in LM receiving a gunshot wound to his upper left thigh. The prosecution alleged that the applicant was the shooter. In support of the prosecution case, KA gave evidence identifying the applicant as the shooter. The defence case focussed on discrediting KA’s evidence, and, to a lesser extent, that of LM, as to their identification of the applicant. Self-evidently, the acquittals on charges 2 to 4 demonstrate that the jury were not satisfied beyond reasonable doubt by KA’s and LM’s evidence that the applicant was the person who fired the gun.
The first trial
Returning to the first trial, charges 1 to 5 (‘the 2016 charges’) concerned a series of incidents on 28 August 2016 at a flat where KA was temporarily living as a guest of BBW. Charge 1 — which resulted in an acquittal — alleged an aggravated burglary at BBW’s flat; and charge 2 — which also resulted in an acquittal — and charge 3 were concerned with a confrontation between the applicant and BBW. As I have said, the applicant pleaded guilty to charge 4, which related to the applicant having struck KA, intentionally causing her injury. No verdict was necessary on charge 5.
Charges 6 to 11 (‘the 2018 charges’) concerned incidents said to have occurred in KA’s residence on 15 May 2018. Each of charges 6 and 7 concerned the applicant having punched KA while she was showering. The jury acquitted on charge 6, but convicted on the alternative, charge 7, recklessly causing serious injury. Charge 8 — ‘the first bathroom rape’ — alleged a penile-oral rape of KA in the bathroom of her residence; charge 9 — ‘the second bathroom rape’ — concerned an alleged penile-vaginal rape, also in that bathroom; and charge 11 — ‘the bedroom rape’ — alleged a further penile-vaginal rape, occurring in the bedroom of KA’s shortly after the two bathroom rapes. Finally, charge 10 alleged that, around the time of the bedroom rape, the applicant recklessly placed KA in danger of serious injury by choking her.
The central issue at trial on the 2018 charges was whether the jury could be satisfied beyond reasonable doubt that the alleged events occurred. KA was cross-examined at length by defence counsel, in the course of which her credibility and reliability were the subject of a concerted attack. In his final address to the jury, counsel for the applicant argued that KA was a liar and her evidence was dishonest.
Significantly, in the course of her evidence, KA gave no evidence which could have sustained the second bathroom rape, charge 9. As a result, at the close of the prosecution case the applicant was acquitted by direction of that charge, the prosecution having accepted that there was no other evidence upon which the jury could convict.
The first trial commenced on Monday, 24 April 2023, and the jury retired at about 3.00 pm on Friday, 12 May 2023. At approximately 10.32 am on Wednesday, 17 May 2023, the jury posed the following question: ‘Juror 4 has to attend a medical appointment with her child in hospital. What do we do?’. In the result, the parties agreed that Juror 4 needed to be discharged, but it was decided that this should not occur until 4.15 pm if a verdict had not been reached. At approximately 3.06 pm, however, the jury asked the judge for further guidance: ‘We have reached a stalemate with two charges. We seek clarity as what to do next’.
Following the second request for guidance, defence counsel submitted that the judge should take verdicts on those charges upon which the jury had agreed, and permit the jury to continue their deliberations on the other charges. The prosecution did not oppose that submission. Having referred to authority,[3] the trial judge proposed taking partial verdicts, and then giving a majority verdict direction, before having the jury continue to deliberate. Both parties agreed to the proposed course.
[3]HRJ v The Queen [2011] VSCA 217; Stevenson v The Queen [2000] WASCA 222; R v CBR [2016] QCA 161.
At 3.32 pm, the jury returned the following verdicts: charge 1, aggravated burglary, not guilty; charge 2, intentionally causing injury to BBW, not guilty;[4] charge 6, intentionally causing serious injury to KA, not guilty; charge 7, recklessly causing serious injury to KA, guilty; and charge 8, the first bathroom rape, guilty.[5] Since the jury had failed to reach agreement with respect to them, no verdicts were taken on charges 10 and 11. At approximately 3.41 pm, the judge gave the jury a majority verdict direction with respect to charges 10 and 11, and the jury retired to continue deliberations. About an hour later, the jury were brought back into court and Juror 4 was discharged pursuant to s 43(d) of the Juries Act 2000.
[4]As set out at [3] above, the applicant had pleaded guilty on arraignment to charges 3 (recklessly causing injury to BBW) and 4 (intentionally causing injury to KA). Given the plea to charge 4, no verdict was taken on charge 5.
[5]A verdict of not guilty by direction had been entered on charge 9, the second bathroom rape. See [15] above.
In the morning of the next day, Thursday, 18 May 2023, defence counsel made an application that the jury be discharged without verdict. In essence, counsel submitted that there had been a ‘procedural irregularity’, in that the jury considering charges 10 and 11 was not the same jury that had delivered verdicts on charges 1, 2, 6, 7 and 8. The prosecution agreed that, as a matter of law, the jury had to be discharged. Faced with the joint position of the parties, the trial judge discharged the jury.
As a consequence of the jury being discharged, no verdicts were returned on charge 10 or charge 11.
In summary, the applicant has been convicted of the following offences:
•recklessly causing injury to BBW: following a guilty plea to charge 3 on indictment relating to the first trial;
•intentionally causing injury to KA: following a guilty plea to charge 4 on indictment relating to the first trial;
•recklessly causing serious injury to KA: following a jury verdict on charge 7 in the first trial;
•rape (the first bedroom rape) of KA: following a jury verdict on charge 8 in the first trial; and
•stalking: following a jury verdict on charge 1 in the second trial.
Proposed third trial
The prosecution intends to subject the applicant to a third trial on charge 10, recklessly placing KA in danger of serious injury by choking her, and charge 11, the bedroom rape, upon which no verdicts were returned in the first trial. For that purpose, the prosecution has filed a draft indictment containing the two charges (renumbered charges 1 and 2); a new Summary of Prosecution Opening for Trial (‘the Opening’), dated 19 September 2023; and a fresh tendency notice under s 97(1)(a) of the Evidence Act 2008 (‘the Notice’).
In the Opening, the prosecution alleges that, shortly after the second bathroom rape — charge 9, upon which the applicant was acquitted by direction — the applicant and KA were in the bedroom of KA’s residence. While in the bedroom, the prosecution alleges, the applicant started to strangle the naked KA, calling her ‘a dog’ and telling her she was ‘a bad dog’. KA pleaded for an ambulance, telling the applicant, ‘no, I’ll tell them I fell over, I just need an ambulance’. The Opening alleges that the applicant briefly stopped strangling KA, but resumed strangling her a short time later, before both ended up on the mattress on their sides. That is the conduct alleged to constitute charge 10 (charge 1 on the proposed new indictment). The prosecution alleges that, while on the mattress, the applicant penetrated KA’s vagina with his penis whilst choking her. That is the conduct alleged to constitute charge 11 (charge 2 on the proposed new indictment).
The Notice sets out two tendencies that the prosecution seeks to establish. In order to establish those tendencies, the prosecution seeks to rely on evidence of a number of uncharged acts that were the subject of evidence in the first trial, together with certain findings of guilt from that trial.
Application for permanent stay and ruling
As previously mentioned, on 8 November 2023 defence counsel applied to the trial judge for a permanent stay of charges 10 and 11. Counsel made the overarching submission that a third trial would bring the administration of criminal justice into disrepute, advancing four principal contentions: first, in defence of charges 10 and 11, the applicant will be placed in an impossible forensic bind, since he will be compelled to reintroduce the subject-matter on his acquittal on charge 9, the second bathroom rape; secondly, the applicant will be placed in an impossible forensic bind, where he will need to consider the reintroduction of the subject-matter of his acquittal on the shooting charges, charges 2 to 4; thirdly, another trial will impermissibly traverse and relitigate the facts and settled verdicts of the first trial; and, fourthly, a third trial would be oppressive, since it would involve a trial on facts, the preponderance of which have already been determined, and would erode public confidence in the justice system by contemplating a situation whereby incompatible determinations of the same facts are invited.
Defence counsel argued that, in order to defend the applicant on charges 10 and 11, it will be necessary again to attack KA’s credibility and reliability. One of the strongest challenges to KA’s credibility in the first trial was her failure to give any evidence about the second bathroom rape. That challenge could be pursued in the first trial because of the presence of charge 9 on the indictment. The Opening, however, makes no reference to the second bathroom rape. It will therefore be for the applicant to raise the issue, thereby potentially calling into question his acquittal on that charge, in circumstances where it may be expected that KA will assert to the jury that the rape in fact occurred. If the applicant’s counsel decides that this risk is too great, the applicant will be deprived of that forensic advantage that he had in the first trial. That places the applicant in an impossible forensic bind.
A similar issue, counsel submitted, arises in relation to the applicant’s acquittals in the second trial, albeit the position is more complicated. It is entirely possible that the verdicts resulted from concerns about the reliability of identification evidence.
The final argument of the applicant’s counsel is that, although he only faces two of the 11 charges originally on the indictment in the first trial, he will be forced to relitigate virtually all of the issues from the first trial, given the breadth of the case that the prosecution intends to present.
Counsel for the prosecution submitted to the trial judge that a permanent stay should be refused. The prosecution does not intend to call KA at a new trial, instead intending to rely on her recorded evidence from the previous trial.[6] Counsel submitted that the applicant’s complaints of forensic disadvantage flow from the decision to have KA recalled. Moreover, on its face, evidence of the applicant’s acquittal on the second bathroom rape is favourable to the applicant, since it may serve to undermine KA’s credibility and/or reliability. The prosecutor submitted that to have KA called again, rather than relying on an edited version of her evidence at the first trial, would constitute a forensic decision by the defence. A new trial, the prosecutor submitted, will not relitigate the facts and verdicts in the first trial, and it is speculative to suggest that a jury might come to a starkly and problematically different conclusion on the same facts.
[6]See CPA, s 379(b)(i).
In refusing a permanent stay, in the course of a careful ruling the judge said:
I consider that the present case is somewhat similar to that of R v Storey[7] in which a majority in the High Court allowed a complainant to give evidence that called into question an earlier acquittal provided the evidence was accompanied by an appropriate warning to the jury about the limited use of the evidence (which was to assess the credibility of the complainant). As Mason J explained, the adoption of that course will ‘in all probability advantage the accused because it tends to suggest that the testimony of the witness to the extent to which it was relied upon by the Crown to support an earlier charge may have been found to be unacceptable’.[8]
I consider that to be the likely effect of the impugned evidence in the third trial. If evidence about the acquittal on the second alleged bathroom rape is adduced, the jury will learn that the applicant was acquitted of a charge of rape against the same complainant at a time close to the time of the allegations that found the two charges before them. They will receive a direction from me as to how they can use that evidence.
While it is possible that, as submitted by [defence counsel], the jury may speculate that the [applicant’s] acquittal was because of some ‘technical’ flaw in the prosecution case, I consider the more likely outcome to be the one described by Mason J in Storey which can only benefit the [applicant]. Further, the possibility of such speculation may be guarded against by an appropriate direction from the trial judge.
…
While I do not understate the difficulty of tailoring an appropriate set of directions in this case, such difficulties are not unknown in criminal trials in this Court especially concerning the use of tendency evidence.
[7][R vStorey (1978) 140 CLR 364].
[8]Ibid, 397.
Applicant’s submissions in this Court
In this Court, counsel for the applicant relied on a ground of appeal that contended that the trial judge erred in finding that a third trial could be held in circumstances that render it fair; would not be unfairly oppressive to the applicant; and would not impermissibly relitigate settled facts and bring the administration of justice into disrepute.
Counsel for the applicant submitted that KA’s complete failure to refer to the second bathroom rape in her narrative was a significant aspect of the defence attack on her credibility at the first trial. On a new trial, counsel submitted, the defence would be compelled to reintroduce this allegation of serious violent sexual offending in order to mount a similar attack, in circumstances where the reintroduction of allegations of serious offending would be highly prejudicial to the applicant. Hence, counsel submitted, the applicant is placed in an unjustifiably oppressive position. Somewhat perversely, having been acquitted in relation to the second bathroom rape, it will fall to the applicant to reintroduce its substance in a retrial, in circumstances where the introduction of the topic of the second bathroom rape by the applicant will dilute its forensic potency. Furthermore, raising with KA her failure to refer to the second bathroom rape would likely result in her challenging the acquittal, which is sacrosanct.
Moreover, the applicant’s counsel submitted, the applicant is in a similar situation with respect to his acquittals in the second trial. Although the fact that the applicant must be considered not guilty of the shooting gives him a new and different advantage with respect to the proposed retrial — there is now a viable motive to lie attributable to the complainant — he cannot exploit this advantage without revealing to the jury that he was accused of stalking KA and shooting her new partner, a matter which is highly prejudicial.
Counsel for the applicant submitted that judicial directions will be incapable of curing prejudice to the defence. Any direction concerning the incontrovertibility of acquittals would inevitably inspire speculation in the jury. Counsel submitted that, upon learning of the rape of which the applicant was acquitted, the jury would have to be directed on the incontrovertibility of that acquittal. But in being informed of this acquittal the jury would deduce that there had been a previous trial in which the applicant had not been acquitted of other charges (in particular, the first bathroom rape).
It is oppressive, counsel submitted, to compel the applicant to defend substantially the same set of facts that have already been determined. That, however, is precisely what would be involved in the proposed retrial. Although verdicts will not be required on charges that have already been determined, the evidence at a new trial will be functionally identical in scope and content. The jury will be exposed to — and the applicant will be called upon again to defend — many matters that have already been determined by another jury, and which do not bear directly on the discrete questions remaining for determination. Counsel argued that the proposed retrial will involve the wholesale relitigation of the first trial, in which almost every piece of evidence is proposed to be adduced. The same evidence will be considered by different jurors, who may reach different conclusions. There is thus a real risk of undermining confidence in the administration of justice, bringing it into disrepute.
Counsel for the applicant submitted that, whilst the trial judge’s ruling was ‘thorough and unimpeachable’ with respect to the broad principles bearing on permanent stays, the judge failed properly to apply the applicable principles (or, at least, the ruling does not expose his path of reasoning). Further, the judge erred in having apparent regard to matters not relevant to a consideration of an abuse of process: the strength of the prosecution case, KA’s credibility, and assessing or establishing some apparent hierarchy of acquittals.
Respondent’s submissions in this Court
Counsel for the respondent submitted that, rather than the continuation of the proceedings involving an unacceptable injustice or unfairness, the administration of justice would be brought into disrepute if the charges against the applicant for the alleged serious violent offences were permanently stayed. A permanent stay is the equivalent to conferring immunity from prosecution. Fairness to the applicant is not the only factor bearing on whether to grant a permanent stay, the public interest in the prosecution of serious charges also being important.
The present case, the respondent’s counsel submitted, is not a rare and exceptional or extreme case where there is an apprehended defect of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences. Indeed, this is a case where the purported unfairness is largely, if not wholly, dependent on the forensic decision of the applicant whether to introduce the circumstances of the acquittals, which, the respondent’s counsel submitted, predominantly benefit the applicant. The reintroduction of the acquittal of the second bathroom rape or of the shooting incident are forensic decisions for the defence, albeit that the applicant possesses a significant advantage not available in the first trial. Counsel for the respondent submitted that, if the defence so requests, the prosecution is capable of opening the case and leading evidence of the fact of the acquittal or acquittals through the informant or through an agreed statement of facts. In those circumstances, it will be apparent from the playing of KA’s pre-recorded evidence from the first trial that she gave no evidence of the second bathroom rape. Consequently, it is not a case where the defence is compelled to question KA about those matters or elicit their detail in order to mount an adequate defence. Assuming that there is some unfairness to the defence, however, judicial directions can guard against the improper use of evidence and improper reasoning by the jury.
Counsel for the respondent submitted that re-trials following ‘hung’ juries involve the relitigation of facts. The adherence to identical evidence in scope and content is appropriate and in itself does not engender unfairness, noting the scope for the opening to be edited as is often the case to ensure a fair trial to the applicant.
Principles applicable to appellate review of an order refusing a permanent stay
By virtue of s 297(1) of the CPA, this Court may give leave to appeal against an interlocutory decision if satisfied that it is in the interests of justice to do so, having regard to several enumerated criteria.
Until the recent decision of the High Court in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore,[9] the preponderance of authority in this Court treated the power to grant a permanent stay as discretionary, and held that review of a trial judge’s decision to grant or refuse a permanent stay was to be determined by this Court according to House principles.[10] That approach was consistent with previous High Court authority. Indeed, in Carroll, Gaudron and Gummow JJ had observed:[11]
The power to stay is said to be discretionary. In this context, the word ‘discretionary’ indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not. However, as with discretionary decisions, properly so called, appellate review of its exercise looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration. If so, the appellate court may reach its own decision in substitution for that of the primary judge, where there are before it the materials for so doing.[12]
[9](2023) 97 ALJR 857 (‘GLJ’).
[10]House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ). See KJM v The Queen (No 2) (2011) 33 VR 11, 12–3 [9]–[14]; Singh v The Queen (2011) 33 VR 1, 6–7 [26]; DPP v Marijancevic (2011) 33 VR 440, 444–5 [13]–[16]; Hermanus (a pseudonym) v The Queen (2015) 44 VR 335, 341 [38]; Jones (a pseudonym) v The Queen [2017] VSCA 111, [9]; Kenny (a pseudonym) v The Queen [2018] VSCA 220, [16], DPP v Frank [2019] VSCA 306, [41]; DPP v MK [2023] VSCA 187, [18]; DPP v Tuteru [2023] VSCA 188, (2023) 105 MVR 125, 148, [70]–[71] (‘Tuteru’).
[11]R v Carroll (2002) 213 CLR 635, 657 [73] (‘Carroll’).
[12]House v The King (1936) 55 CLR 499 at 505.
Following GLJ, however, it would seem that the standard of appellate review that this Court must apply when considering an order granting or refusing a permanent stay of a proceeding is the ‘correctness standard’ described in Warren v Coombes.[13]
[13](1979) 142 CLR 531, 552 (Gibbs ACJ, Jacobs and Murphy JJ).
In GLJ the High Court held that the power to grant a stay under s 67 of the Civil Procedure Act 2005 (NSW)[14] is an evaluative, but not a discretionary decision. GLJ was a civil case involving a claim for damages arising from alleged sexual assaults on the plaintiff by a priest in 1968 when the plaintiff was 14 years of age. Based on the 55-year delay — there was no limitation period applicable — and the death of the priest, the defendant applied for a permanent stay of the proceeding as an abuse of process. The primary judge refused a permanent stay, but the Court of Appeal allowed an appeal and permanently stayed the proceeding.
[14]Section 67 provides: ‘Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day’.
Kiefel CJ, Gageler and Jagot JJ explained[15] that
an exercise of power under s 67 of the Civil Procedure Act to permanently stay proceedings on the ground that they are an abuse of process as any trial will be necessarily unfair or “‘so unfairly and unjustifiably oppressive’ as to constitute an abuse of process”[16] is an evaluative but not a discretionary decision. Proceedings either are or are not capable of being the subject of a fair trial or are or are not so unfairly and unjustifiably oppressive as to constitute an abuse of process. Accordingly, the applicable standard of appellate review is not that specified in House v The King,[17] but the “correctness standard” as explained in Warren v Coombes.[18]
[15]GLJ, 865 [15] (citations as in original). See also 881 [95] (Steward J); 892 [161] (Gleeson J).
[16]Walton v Gardiner (1993) 177 CLR 378 at 392; 67 ALJR 485.
[17]House v The King (1936) 55 CLR 499 at 504–505.
[18]Warren v Coombes (1979) 142 CLR 531 at 551–552; 53 ALJR 293.
Distinguishing earlier authorities Carroll and Batistatos,[19] Kiefel CJ, Gageler and Jagot JJ said:[20]
If, as correctly recognised in R v Carroll and Batistatos, a judge must stay proceedings that are an abuse of process and must not stay proceedings that are not an abuse of process, it necessarily follows that the decision is not a discretionary one for the purpose of ascertaining the applicable standard of appellate review.[21] Nor does the application of the standard applicable to discretionary decisions — “whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration” — reflect either the purpose of the power (to protect the integrity of the adversarial system) or the extreme consequences of an exercise of the power (a court declining to exercise its jurisdiction). That the classes of possible abuse of process are not closed because “notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case”[22] may be accepted, but does not dictate that a decision to grant a permanent stay is discretionary in nature.
[19]Batistatos v Roads and Traffıc Authority (NSW) (2006) 226 CLR 256.
[20]GLJ, 868–9 [26] (citation as in original).
[21]cf, eg, Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325 at [164]; 93 ALJR 1 and UBS AG v Tyne (2018) 265 CLR 77 at [74]; 92 ALJR 968.
[22]Ridgeway v The Queen (1995) 184 CLR 19 at 75; 69 ALJR 484.
In light of GLJ, this Court must, when reviewing a judge’s decision to grant or refuse a permanent stay, decide the case for itself. Hence, if the Court considers that the trial judge was in no better position to decide the particular question, or if, after giving full weight to his or her decision, the Court considers that it was wrong, the Court must give effect to its own judgment.[23]
[23]Warren v Combes (1979) 142 CLR 531, 552. See also Koschier v R [2024] NSWCCA 24, [36] (Bell CJ, Harrison CJ at CL and Chen J agreeing).
As to the principles that guide the grant of a permanent stay, it is well settled that a court should stay criminal proceedings only if, having regard to all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness, or if their continuation would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.[24] In order to justify a permanent stay the circumstances must be exceptional,[25] a permanent stay being a measure of last resort.[26] There must be a fundamental defect going to the root of the trial of such a nature that nothing that the trial judge could do in the conduct of the trial could relieve against its unfair consequences.[27] To obtain a stay, an accused person must demonstrate that the circumstances are such that any trial necessarily will be unfair, so that a conviction would bring the administration of justice into disrepute.[28] The court must have regard to the substantial public interest in having those charged with serious criminal offences brought to trial as well as the fundamental right of an accused to a fair trial and the need to maintain public confidence in the administration of justice.[29] A court’s power to grant a permanent stay stems from the court’s inherent jurisdiction to protect the integrity of its processes where the administration of justice so requires.[30]
[24]Walton v Gardiner (1993) 177 CLR 378, 392 (Mason CJ, Deane and Dawson JJ) (‘Walton’). See also Jago v District Court of New South Wales (1989) 168 CLR 23 (‘Jago’); R v Glennon (1992) 173 CLR 592; Dupas v The Queen (2010) 241 CLR 237 (‘Dupas’); R v Edwards (2009) 255 ALR 399 (‘Edwards’).
[25]Williams v Spautz (1992) 174 CLR 509, 529.
[26]Strickland (a pseudonym) v DPP (Cth) (2018) 266 CLR 325, 409 [248], 415 [264] (Edelman J); Tuteru, MVR 147, [65]. See also Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132, 141–2 [20]–[22] (Kiefel CJ, Gageler, Keane and Gordon JJ) (a non-criminal case).
[27]Barton v The Queen (1980) 147 CLR 75, 111 (Wilson J); Jago, 34 (Mason CJ); Dupas, [35]; Haris (a pseudonym) v The King [2023] VSCA 205, [49]–[50] (Emerton P, Beach and McLeish JJA) (‘Haris’).
[28]Jago, 34 (Mason CJ).
[29]Walton, 395–6; Tuteru, MVR 148, [69]; Haris, [53].
[30]Tuteru, MVR 147, [64].
In the wake of GLJ, in Haris (No 2), this Court said:[31]
The High Court in GLJ, albeit against a civil context, gave voice to statements of principle applicable in cases where a stay is sought on the basis of necessary unfairness or unfair and unjustifiable oppression. The real issue in deciding whether or not to grant a permanent stay is the congruence or otherwise of holding a trial and rendering a verdict with the fundamental norms underlying our legal system — namely, its adversarial character. The grant of a permanent stay to prevent an abuse of process involves the ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system.
Only an exceptional case justifies the exercise of the power of a court to permanently stay proceedings. Neither necessary unfairness nor such unfairness or oppression as to constitute an abuse of process justifying a permanent stay of proceedings equates with a mere risk that a trial might be unfair.
[31]Haris (a pseudonym) v The King (No 2) [2024] VSCA 9, [101]–[102] (Emerton P and Boyce JA).
Consideration
In my opinion, the judge was correct to refuse a permanent stay. I am not persuaded that a retrial of the applicant on charges 10 and 11 will involve unacceptable injustice or unfairness, or be so unfairly and unjustifiably oppressive as to constitute an abuse of process. Nor am I persuaded that the trial judge failed properly to apply the applicable principles to the particular facts of this case. Indeed, proper application of the principles bearing on permanent stays leads inevitably to the conclusion that the judge was correct to refuse a stay.
Accepting for the sake of argument that the applicant might suffer some prejudice from having to relitigate much of the evidence from the first trial, that alone is not a feature that would justify the grant of a permanent stay. On the assumption that there is evidence properly capable of supporting the charges in an indictment, it is difficult to imagine circumstances in which the mere fact that the parties on a retrial will be required once more to traverse evidence and issues agitated at an earlier trial could ever constitute abuse of process amenable to a permanent stay. Retrials are commonly conducted on charges upon which a jury in an earlier trial could not agree, and on charges upon which jury verdicts have been set aside following a successful appeal. Save for those charges which have resulted in a jury returning verdicts, it is impossible to divine those facts that the jury may have accepted or rejected, for or against, the prosecution or defence.
The prosecution has indicated that, on a third trial, it proposes pursuant to s 379(b)(i) of the CPA, to rely on KA’s pre-recorded evidence from the first trial. There is a presumption in favour of admitting the recording,[32] which, as it stands, will not contain any reference to the circumstances of the alleged second bathroom rape — it will be remembered that KA failed to give any evidence about it — or of the carpark shooting incident. The circumstances of the second bathroom rape, and those of the shooting, will only be introduced into a third trial upon the applicant’s insistence. Furthermore, the prosecution has indicated that, should the applicant wish to ventilate the subject of the second bathroom rape, or of the shooting incident, it is prepared to lead evidence of the applicant’s acquittals, either through the informant or by way of an agreed statement of facts.
[32]See CPA, s 381(1AAB). See also R v Bauer (2018) 266 CLR 56, 78–80 [41]–[45].
I fail to see that, in those circumstances, a third trial of the applicant will be unacceptably unjust or unfair, or unfairly and unjustifiably oppressive. Less can I understand how it can legitimately be suggested that the applicant is in an impossible ‘forensic bind’. In my view, there is ample scope to attack KA’s credit without any necessity to introduce the allegations concerning the second bathroom rape. But if, in the exercise of forensic judgment, counsel for the applicant decides to enter that territory, the applicant will undoubtedly be the beneficiary of judicial directions concerning the incontrovertibility of an acquittal. For my part, I would regard ventilation of the subject of the second bathroom rape to be a fraught forensic exercise, likely to result in little (if any) benefit to the defence. It is, however, a decision for the applicant whether he wishes to set up a skittle only to knock it down.
Moreover, I can see no sound reason for the defence seeking to introduce into a third trial evidence from the second trial concerning the shooting. Although the forensic decisions made by defence counsel are often prompted by the atmosphere permeating the particular trial, at this distance I cannot see that competent counsel would consider it to be in the applicant’s interests to introduce at a third trial evidence as to the circumstances of the discharge of the firearm, and the acquittals on charges 2, 3 and 4. There would be no forensic benefit to the applicant in doing so.
Indeed, I am unable to see that the applicant’s acquittals on charges 2, 3 and 4, or the evidence that KA or LM gave relevant to those charges, could found a legitimate attack on KA’s credit. As I have said, those charges turned on KA’s (and LM’s) identification of the applicant as the shooter. It is a notorious fact that honest witnesses sometimes give unreliable or mistaken evidence of identification. The jury’s acquittals of the applicant on the shooting charges cannot unequivocally be interpreted as demonstrating that the jury considered KA to be other than credible and truthful. Given the warnings that the jury was given about the unreliability of identification evidence,[33] the jury’s verdicts may indicate no more than that the jury thought KA’s evidence of identification to be honest but mistaken.
[33]See Jury Directions Act 2015, s 36(3).
Conclusion
For the foregoing reasons, leave to appeal against the interlocutory decision must be refused.
WALKER JA:
I agree with Priest JA and Croucher AJA.
CROUCHER AJA:
I have had the advantage of reading the reasons of Priest JA in draft. For the reasons his Honour gives, I agree that leave to appeal the interlocutory decision of the trial judge should be refused. I wish to add the following.
Mr Richter, who appeared with Ms Dubroja for the applicant, submitted that there was an additional consideration that should have caused the trial judge to accede to the application for a permanent stay. This, he submitted, was the consideration that, if at the proposed retrial the applicant were found guilty of the rape and reckless endangerment alleged in charges 10 and 11, it is likely that only a relatively small proportion of the total effective sentence to be imposed on all offences would be attributable to the offences alleged in those two charges. In Mr Richter’s submission, while the additional charges are serious, the cumulation attributable to those alleged offences as part of a total effective sentence might be measured in months, rather than years.
Ms Ruddle KC, who appeared with Ms Pillai for the respondent, submitted that, were the applicant found guilty of the offences alleged in charges 10 and 11, a greater level of cumulation than that suggested by Mr Richter would be likely. More fundamentally, however, her submission was that, whether convictions on those outstanding charges would be likely to add a little or a lot to the total effective sentence, this is an irrelevant consideration in determining whether a permanent stay is to be ordered. This is because the offences alleged in charges 10 and 11 represent additional serious criminality in respect of which there is a viable prosecution case. In those circumstances, the submission continued, it is wholly within the Director’s exercise of prosecutorial discretion to proceed with a retrial on those charges, irrespective of the contribution to a total effective sentence that sentences for such alleged offences might make were guilty verdicts returned at a retrial.
In my view, Ms Ruddle’s submissions should be accepted. The offences alleged in charges 10 and 11 do indeed represent additional serious criminality, and no challenge was made to the submission that there is a viable case on those charges. In those circumstances, it is not for a court to order a permanent stay on the basis of an assessment that, were guilty verdicts returned, the amount of cumulation of sentence to be directed might represent only a relatively small proportion of the total effective sentence to be imposed on all offences. Moreover, it serves the administration of justice
that serious additional criminality of the kind alleged in charges 10 and 11 is brought to trial.
This is not to say that the likely contribution of sentences for the offences alleged in charges 10 and 11 to a total effective sentence could not be a factor capable of informing the Director’s discretion whether or not to pursue a retrial. For example, that consideration, when combined with the total criminality of which the applicant stands convicted, and a concern to avoid KA having to give evidence yet again, might be enough to cause the Director to decline to persist with a third trial. But these and other considerations are matters wholly within the Director’s prosecutorial discretion, and are not matters for the trial judge or this Court.
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