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Buchanan (a pseudonym) v The King [No 2]

Buchanan (a pseudonym) v The King [No 2]

Case [2024] VSCA 50 28 March 2024

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0177

ALBERT BUCHANAN (A PSEUDONYM)[1]	Applicant
v
THE KING [NO 2]	Respondent

[1]To prevent any risk of prejudice in the proper administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	EMERTON P, WHELAN JA and ELLIOTT AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 February 2024
DATE OF JUDGMENT:	28 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 50
JUDGMENT APPEALED FROM:	DPP v [Buchanan] (County Court of Victoria, Judge Brookes, 22 September 2023)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Refusal of permanent stay – Allegations of sexual offending – Delay – Loss of evidence – Death of witness – Leave to appeal refused.

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Counsel
Applicant:		Mr C Carr SC with Ms G Boe
Respondent:		Mr D Porceddu
Solicitors
Applicant:	Tony Hargreaves & Partners
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P

WHELAN JA

ELLIOTT AJA:

Introduction and summary

The applicant is facing trial in the County Court on an indictment containing 10 charges: five charges of indecent assault, one charge of rape contrary to common law, one charge of sexual penetration of a person aged between 10 and 16, one charge of statutory rape and two charges of indecent act with a child under 16 years. The offences the subject of the indictment are alleged to have been committed against five complainants over a period of approximately 17 years, between 1985 and 2002.
On 7 September 2023, the applicant applied for a permanent stay of all charges on the indictment on the basis that continuation of the proceeding would amount to an abuse of process. This was said to be due to a combination of factors, including the manner in which the prosecution had conducted its investigations, the lack of independence and impartiality exercised by the prosecution, and the impact of delay and resulting forensic disadvantage faced by the applicant.
The trial judge refused the application. The applicant subsequently sought, and the trial judge granted, certification pursuant to s 295(3)(b) of the Criminal Procedure Act 2009, on the basis that the decision to refuse the stay was of sufficient importance to justify it being determined on an interlocutory appeal.
The applicant now seeks leave to appeal.
In contrast to the application below, the applicant now confines the application to three of the 10 charges the subject of the indictment. These charges, being charges 6, 7 and 8, relate to one particular complainant, the applicant’s niece, referred to as ‘LMM’. They concern offending alleged to have occurred around 35 years ago when LMM was about 16 years of age.
The applicant’s submissions before us principally focused on the unavailability of a witness who has died, LMM’s grandmother and the applicant’s mother, referred to as ‘MM’.
In essence, the applicant contends that a fair trial in respect of charges 6, 7 and 8 is not possible due to the…

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 Buchanan (a pseudonym) v The King [No 2]

Details

AGLC: Buchanan (a pseudonym) v The King [No 2] [2024] VSCA 50
Case: [2024] VSCA 50
Decision Date: 28 March 2024

CaseChat Overview and Summary

The case of Buchanan v The King [No 2] involved the appellant, Buchanan, who sought an interlocutory appeal against a decision of the Supreme Court of Victoria. The appeal pertained to the refusal of a permanent stay of proceedings against Buchanan, who was facing allegations of sexual offences. The primary concerns raised by Buchanan included the significant delay in the proceedings, which had resulted in the loss of crucial evidence, and the death of a key witness. The court was tasked with determining whether the delay and the resultant loss of evidence and the death of the witness warranted a permanent stay of the proceedings against Buchanan.

The legal issues before the court involved the application of principles relating to the stay of criminal proceedings, particularly in cases where there had been substantial delays that prejudiced the accused's right to a fair trial. The court had to consider the extent to which the delay had impacted Buchanan's ability to mount a proper defence and whether the prejudice caused by the delay and the death of the witness was so severe that it rendered the continuation of the trial unjust. The court also needed to weigh the public interest in the prosecution of the alleged crimes against the rights of the accused.

The court ultimately found that the delay and the death of the witness did not sufficiently prejudice Buchanan's right to a fair trial to warrant a permanent stay. The court reasoned that the delay, while significant, did not rise to the level where it would irreparably prejudice the defence. Additionally, the court determined that the death of the witness, while regrettable, did not eliminate all potential for a fair trial given the existence of other evidence and witnesses. The court also considered the public interest in ensuring that serious allegations of sexual offences were properly investigated and prosecuted. Consequently, the appeal was dismissed, and leave to appeal was refused.

Orders