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Brewer v The Queen

Brewer v The Queen

Case [2017] VSCA 117 24 May 2017

Appeal

Indecent Assault

Rape

Sexual Penetration of a Child Under 16

Limitation Periods

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0217

JASON BREWER (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	MAXWELL P, KYROU JA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 April 2017
DATE OF JUDGMENT:	24 May 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 117
JUDGMENT APPEALED FROM:	DPP v [Brewer] (Unreported, County Court of Victoria, Judge Meredith, 26 October 2016)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Trial – Refusal of permanent stay – Indecent assault, rape sexual penetration of a child under 16 – Delay of 28–34 years since alleged offending – Complaint evidence – Death of complaint witnesses – Whether other potentially exculpatory evidence available – No enquiries made – Application for stay premature – Refusal of stay open – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms H Spowart	Victoria Legal Aid
For the Crown	Mr G J C Silbert QC with Mr W Stougiannos	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P

KYROU JA:

Introduction and summary

This is an application for leave to appeal pursuant to s 295(2) of the Criminal Procedure Act 2009 (‘CPA’) against an interlocutory decision made by a judge of the County Court refusing to grant a permanent stay of the proceeding or to sever two charges from the indictment.

The interlocutory decision was made by the judge in a pre-trial ruling dated 26 October 2016 (‘Ruling’). On the same day, the judge granted a certificate pursuant to s 295(3)(b) of the CPA to enable the applicant to seek leave to appeal against the Ruling.

The applicant has been charged with six charges of indecent assault (charges 1, 2, 3, 4, 7 and 8), one charge of rape (charge 5), one charge of sexual penetration of a child under 16 years of age (charge 6, which is as an alternative to charge 5) and one charge of gross indecency in the presence of a child under 16 years of age (charge 9, which is as an alternative to charge 8).

The offending is alleged to have occurred between 1 January 1982 and 31 December 1988. The complainants are the daughter and son of the applicant’s then partner. Charges 1, 4, 5, 6, 7, 8 and 9 relate to the female complainant and charges 2 and 3 relate to the male complainant. At the time of the alleged offences, the female complainant was between nine and 15 years of age and the male complainant was between 11 and 17 years of age. The applicant was then between 36 and 42 years of age.

At the time of his arrest for the alleged offences in June 2014, the applicant was 67 years of age, the female complainant was 41 years of age and the male complainant was 43 years of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brewer v The Queen

Details

AGLC: Brewer (a Pseudonym) v The Queen [2017] VSCA 117
Case: [2017] VSCA 117
Decision Date: 24 May 2017

CaseChat Overview and Summary

The appellant, Brewer, was convicted of indecent assault, rape, and sexual penetration of a child under 16. He applied for a permanent stay of the proceedings on the basis that the delay in bringing the charges, which spanned from 28 to 34 years since the alleged offending, was unjust. The primary basis for the application was the death of the complaint witnesses and the absence of potentially exculpatory evidence. The Court of Appeal was tasked with determining whether the trial judge's refusal of a permanent stay was open and if leave to appeal should be granted.

The court examined whether the delay in bringing the charges was unjust and whether the appellant's right to a fair trial had been prejudiced. It also considered whether there were other potentially exculpatory pieces of evidence that had not been explored. The court found that the application for a stay was premature because the appellant had not made inquiries to ascertain whether there were other potentially exculpatory pieces of evidence available. The court held that the trial judge's refusal of the stay was open and, therefore, the application for leave to appeal was refused.

The court determined that the delay in bringing the charges was not so lengthy or unjust as to render the trial unfair. It found that the appellant's right to a fair trial was not prejudiced by the delay. The court also held that the appellant had not made sufficient inquiries to establish whether there were other potentially exculpatory pieces of evidence available. Therefore, the trial judge's refusal of the stay was open. Finally, the court held that the application for leave to appeal was properly refused, as the appeal did not have a reasonable prospect of success.

The final orders of the court were that the application for leave to appeal was dismissed, and the refusal of the stay was upheld. The court held that the trial judge's decision to refuse the stay was open and that the appeal did not have a reasonable prospect of success.

Orders