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

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 loss of evidence that has resulted from the effluxion of three and a half decades since the offending the subject of these charges is alleged to have taken place, such that any trial would be an abuse of process. The applicant submits that ‘[m]ost pertinently’ the person who on LMM’s account was in a position to confirm or deny critical aspects of the case is now deceased, namely ‘MM’.[2] Leaving aside MM’s unavailability, it is contended the presumptive prejudice in this case is especially powerful and in itself gives rise to unacceptable unfairness because of the applicant’s lost opportunity to test the credibility and reliability of LMM by reference to various matters.
[2]MM died in 2009. MM’s then partner is also deceased, having died on 1 August 1988.
Leave to appeal is sought on three proposed grounds:[3]
(1)The trial judge gave inadequate reasons for refusing to permanently stay the indictment.
(2)The trial judge erred in his reasoning as to the unfairness that would result from MM’s unavailability as a witness.
(3)The decision of the trial judge to refuse to permanently stay charges 6, 7 and 8 on the indictment was wrong.[4]
[3]For ease of reference we will generally refer to the proposed grounds of appeal as ‘grounds’.
[4]The notice of application for leave to appeal referred to the trial judge’s decision being ‘plainly wrong’, but this ground was amended at the start of the hearing by reason of the High Court decision delivered on 1 November 2023 in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32 (‘GLJ’): see further at [30] below.

Background and brief procedural history

As is not particularly uncommon in cases involving allegations of sexual offending, the prosecution case has undergone a number of changes over the course of this proceeding,[5] resulting in the filing of fresh indictments at various points.[6] In 2021, following a ruling on tendency,[7] the charges against the applicant were divided into two indictments: an indictment containing the 10 charges referred to above (‘Indictment 2A’); and a separate indictment which contains two further charges relating to conduct allegedly perpetrated against LMM on 31 January 1987 (‘Indictment 2B’).
[5]There is nothing improper or unfair in the prosecution reconsidering the way it puts its case: DPP v Tuteru (2023) 105 MVR 125, 156 [116], 158 [136] (Beach, Walker and Taylor JJA); [2023] VSCA 188 (‘Tuteru’).
[6]Buchanan (a pseudonym) v The Queen [2022] VSCA 130, [4]–[9] (Priest, Beach and T Forrest JJA).
[7]DPP v [Buchanan] [Ruling No 2] (County Court of Victoria, Judge Stuart, 27 October 2021).
Broadly, charges 6, 7 and 8 of Indictment 2A are as follows:
•Charge 6: Indecent assault of LMM between 1 August 1988 and 3 July 1989.
•Charge 7: Indecent assault of LMM between 1 August 1988 and 3 July 1989.
•Charge 8: Rape (contrary to common law) of LMM between 1 August 1988 and 3 July 1989.
The alleged factual background to these charges has previously been set out by this Court, as follows:
The applicant grew up in a central Victorian city, living with his mother [MM] and other relatives. LMM, his niece, lived with the family. …
In around 1985, when he was aged 20 years, the applicant formed a relationship with ‘KS’, then aged 16. …
…
After the applicant and KS had separated, the applicant went back to live at [MM’s] house, where LMM was residing. Between mid-1988 and mid-1989, LMM was folding laundry in the rumpus room at the back of the house. The applicant came into the room wearing a dressing gown and opened the gown. He was naked underneath. The applicant then grabbed LMM’s hand and put it on his penis, using her hand to masturbate himself (charge 6). He then took LMM to his bedroom, lay her on the bed, took her pants off and, without her consent, licked her vagina, penetrating it with his tongue (charge 7). On another occasion, after LMM had taken steps to prevent entry to her bedroom through the door, the applicant entered her bedroom through a window. He got into bed with her and, without her consent, inserted his penis into her vagina. He thrust his penis in and out of LMM, before removing it and ejaculating onto her stomach (charge 8).
The prosecution also seeks to rely on … uncharged acts relating to LMM, which are said to have occurred when LMM was aged about 16. It is alleged that the applicant started coming into her bedroom. On one occasion he came into her room while she was standing at her dressing table and kissed her passionately, inserting his tongue into her mouth. Not long afterwards he again came into LMM’s bedroom while she was lying in bed, and started taking his clothes off. He desisted and left when [MM] unexpectedly came into the room. Thereafter, LMM began taking steps to lock her bedroom door, and devised a method of wedging the door closed with a knife. The applicant then started trying to enter her room through the window.[8]
[8]Buchanan (a pseudonym) v The Queen [2022] VSCA 130, [12]–[13], [20]–[21] (Priest, Beach and T Forrest JJA).
The prosecution intends to rely upon the uncharged act referred to above involving the applicant allegedly entering LMM’s bedroom and MM entering unexpectedly. The most recent summary of prosecution opening provided some further detail. It referred to LMM lying in bed and the applicant entering her bedroom and proceeding to undress. LMM’s evidence is expected to be that as the applicant was climbing into her bed, MM entered the room and demanded in a loud voice to know what was going on. LMM has stated more than once in statements made to police that she believed MM knew the applicant was abusing her but did nothing about it. LMM has also agreed that, other than raising this event with a counsellor in the early 1990s, she did not tell ‘anybody official’ about it until 2019.

LMM will give evidence that the applicant would habitually go into her bedroom, resulting in LMM regularly wedging the door closed with a knife, as referred to above. This aspect of her account of events is one of the matters which the applicant contends MM, and others now unavailable, would have been able to confirm or deny.
The prosecution intends to adduce evidence of complaints allegedly made by LMM to five witnesses in relation to the alleged offending the subject of charges 6, 7 and 8. Three of these complaints are said to have been made at the time of or soon after the alleged offending, in 1988 or 1989, and two further complaints are said to have been made in 2009 and 2015 respectively.[9]
[9]One of the persons to whom LMM is alleged to have made a complaint about the alleged offending in 1989 is her former partner. According to the defence’s ‘Pre-Trial Outline’ dated 14 August 2023, the prosecution had advised that her former partner had been located, but was not willing to participate by providing a statement. In relation to the alleged complaint in 2015, although the position before the trial judge was otherwise, the prosecution has now indicated it intends to call this complaint witness.
It is expected that one of these complaint witnesses, ‘MNM’, will give evidence that LMM disclosed to her around the time of the alleged offending that the applicant had been sexually abusing LMM. The prosecution case is that MNM subsequently confronted both the applicant and MM about LMM’s allegations on separate occasions. Both are said to have denied the allegations, and MM allegedly stated that LMM was lying.
Some of the complaint evidence relied upon in relation to the charges concerning the alleged offending against LMM, including the evidence of MNM, was only introduced in mid to late 2022. The timing of this complaint evidence and the manner in which it was obtained was one of the matters relied upon by the applicant in asserting before the trial judge that any trial would be unacceptably unfair.
Although severed from this proceeding, Indictment 2B remains of some relevance to the issues at hand.[10] The two charges it contains relate to conduct alleged to have occurred on 31 January 1987. It is alleged that LMM, then 14 years old, consumed alcohol at a function, felt sick, and was taken by her aunt, who is the applicant’s sister (referred to as ‘BDM’), to BDM’s home. She was put into BDM’s bed for the night. The next morning LMM was allegedly asked by BDM about a smashed window in another room of the house, to which LMM responded that the applicant had broken in and raped her.[11] BDM then allegedly took LMM to MM’s house, where BDM repeated LMM’s complaint. MM is alleged to have responded by stating that what LMM had said was a lie.[12]
[10]To date, no permanent stay application has been made in relation to the charges the subject of Indictment 2B. The trial of that proceeding has been adjourned pending the completion of the trial in this proceeding.
[11]See also Buchanan (a pseudonym) v The Queen [2022] VSCA 130, [19] (Priest, Beach and T Forrest JJA).
[12]This account of what occurred is not consistent with that given in statements provided by BDM to police.
Notwithstanding MM’s alleged response, BDM took LMM to a hospital where forensic testing was carried out. In February 1987, the applicant was charged with rape, aggravated burglary and carnal knowledge of a girl aged between 10 and 16 years.
A certified extract of a committal proceeding at the Magistrates’ Court at Ballarat records that on 1 May 1987, the applicant was discharged on a charge of rape allegedly committed on 31 January 1987. All other documentation of any substance relating to that proceeding has been lost or destroyed, including the brief of evidence, the applicant’s record of interview, the committal transcript and the results of forensic testing. At the committal hearing in this proceeding, LMM gave evidence that as a result of threats from MM, when she was called to give evidence at the 1987 committal she pretended she could not remember anything about the conduct the subject of the allegations.[13]
[13]A retired police officer who was involved in investigating these allegations in 1987 has given a statement that he was in attendance at the 1987 committal and is able to recall LMM giving (or more accurately, being unable to give) evidence. He described LMM as appearing to be very scared and said that despite the efforts of the magistrate, the prosecutor and himself she could not give evidence.
In the ruling on the stay application, the judge recorded the fact that BDM is no longer to be called as a witness by the prosecution. There had been an earlier application to cross-examine her as an unfavourable witness.
Matters relating to some of the allegations against the applicant were broadcast on national television in February 2019. The following month, LMM provided a statement to police. In July 2019, the applicant was interviewed and charged. A committal hearing was held in December 2020.
The applicant applied to cross-examine proposed prosecution witnesses.[14] Orders were made accordingly with respect to several witnesses, including LMM.[15] These witnesses were cross-examined before the trial judge in November 2022, and April and September 2023.
[14]Criminal Procedure Act 2009 s 198B(1).
[15]Such orders must not be made unless the court is satisfied that they are necessary to avoid a serious risk that the trial would be unfair: ibid s 198B(3).

The ruling of the trial judge

The trial judge delivered a ruling refusing the application for a permanent stay of Indictment 2A concurrently with a ruling on a separate application concerning the admissibility of certain complaint evidence relating to the alleged offending against LMM and another complainant. After a detailed elaboration of the submissions of both parties and a recitation of the relevant principles, his Honour provided his reasons in respect of both applications.
After ruling that most of the complaint evidence was admissible,[16] the trial judge then ruled on the stay application.
[16]The exception was the evidence of one complaint witness concerning the alleged complaint in 2015, in respect of which the trial judge reserved his position as to admissibility: DPP v [Buchanan] (County Court of Victoria, Judge Brookes, 22 September 2023) 892–3 (‘Reasons’).
In relation to the issue which is now the focus of the application before us, being the unavailability of MM, the judge said:
[T]here is evidence that [MM] … was confronted by one of the complaint witnesses to the effect that [MM] witnessed [the applicant] in a compromising position in [LMM]’s bedroom, to which she specifically denied.[17] Further when it was put to the [applicant] he also denied the episode.
Both [pieces of] evidence of these denials, it seems to me, can be admitted into evidence in this case which is prima facie beneficial to the [applicant]. Any further evidence other than the denial falls into a category as submitted by the prosecution of, ‘Complete speculation’. Further, it’s submitted that the defence may be able to avail themselves of a forensic disadvantage direction in accordance with s 43 of the Jury Directions Act.[18]
[17]As to the accuracy of this characterisation of what was said to MM see [102] below.
[18]Section 43 deals with the making of a direction when the prosecution does not call or question a particular witness, rather than a forensic disadvantage direction.
In relation to contentions made before him, which were not relied upon before us, concerning the manner in which the prosecution had conducted its investigations, and what was contended to be a lack of independence and impartiality exercised by the prosecution, the judge noted that the late introduction of complaint evidence by the prosecution had been ‘regrettable’. However, the trial judge stated that the applicant had been provided with an opportunity to test that evidence by way of the hearings pursuant to s 198B of the Criminal Procedure Act 2009, and that any assessment of the reliability of that evidence would be a matter for the jury. In this regard, his Honour observed that a permanent stay was not an appropriate remedy for punishing non-compliance with or irregularities in case management procedures.[19]
[19]Reasons, 893.
The trial judge then referred to the fact that most threats to the fairness of a trial (including weak, tenuous, or illegally or improperly obtained evidence) could be dealt with in ways other than the granting of a permanent stay, such as rulings on admissibility and directions to the jury.[20]
[20]Reasons, 894.
The trial judge concluded that the complaints of the five complainants, which had been ruled cross-admissible as tendency evidence, ‘raise[d] the spectre of serious offences’ and that there was a substantial public interest in the Court exercising its jurisdiction to determine whether a person charged with an offence is guilty. The judge addressed the question of pre-trial publicity, referring to authority for the proposition that granting a stay for this reason would give media attention the capacity to render an accused unable to stand trial.[21]
[21]Reasons, 894–5.
Accordingly, his Honour refused to grant a permanent stay of Indictment 2A.

Principles relating to a permanent stay

Though long conceived of as a discretionary exercise,[22] the High Court recently affirmed that an exercise of power to permanently stay a proceeding (or any part of it) on the grounds that it is an abuse of process is an evaluative, rather than discretionary, decision,[23] involving the application of the ‘correctness’ standard.[24] That is, even if a value judgment is involved, there is only one legally permissible answer.[25] As such, on the present application the duty of the court is to decide both the facts and the law of the case for itself, while remaining cognisant of any advantages enjoyed by the trial judge in making findings of fact and drawing inferences.[26] Thus, it is not necessary that an error on the part of the trial judge of the kind described in House v The King[27] be identified.
[22]See, eg, R v Carroll (2002) 213 CLR 635, 657 [73] (Gaudron and Gummow JJ); [2002] HCA 55; Jago v District Court (NSW) (1989) 168 CLR 23, 31 (Mason CJ); [1989] HCA 46 (‘Jago’).
[23]GLJ (2023) 97 ALJR 857, 865–6 [15]–[17], 868 [24] (Kiefel CJ, Gageler and Jagot JJ, Steward J and Gleeson J dissenting but relevantly agreeing at 881–2 [95]–[96] and 892 [161] respectively); [2023] HCA 32. It should be noted that this case involved a civil claim for alleged sexual abuse in a context where a limitation period in respect of such claims had been abolished.
[24]Ibid 862 [1], citing Warren v Coombes (1979) 142 CLR 531, 552 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9 (‘Warren’).
[25]GLJ (2023) 97 ALJR 857, 866 [16]–[17] (Kiefel CJ, Gageler and Jagot JJ); [2023] HCA 32.
[26]Ibid 868–9 [27]–[28], citing Warren (1979) 142 CLR 531, 552 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9.
[27](1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.

The principles governing an application for a permanent stay are well settled, and were not in dispute. A court should only stay an indictment (or any part of it) if satisfied that, in all the circumstances, its continuation would involve unacceptable injustice and unfairness or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.[28] The party seeking the stay bears a heavy onus, with consideration of whether it has been discharged to be assessed on the balance of probabilities.[29]
[28]Walton v Gardiner (1993) 177 CLR 378, 392 (Mason CJ, Deane and Dawson JJ); [1993] HCA 77. As for the meaning of abuse of process in the context of a criminal proceeding, see Tuteru (2023) 105 MVR 125, 147–8 [66]–[67], 157 [127] (Beach, Walker and Taylor JJA); [2023] VSCA 188, citing Strickland (a pseudonym) v DPP (Cth) (2018) 266 CLR 325, 409 [249] (Edelman J); [2018] HCA 53; Haris (a pseudonym) v The King [2023] VSCA 205, [49] (Emerton P, Beach and McLeish JJA), citing R v Edwards (2009) 83 ALJR 717, 723 [33] (Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2009] HCA 20.
[29]GLJ (2023) 97 ALJR 857, 867 [21] (Kiefel CJ, Gageler and Jagot JJ); [2023] HCA 32.
A fulsome elaboration of the considerations which underpin a decision to permanently stay proceedings was provided by this court in R v FJL.[30] These principles were later extracted and restated in Hermanus (a pseudonym) v The Queen, as follows:
·    First, the exercise of the power to stay must be exceptional since it results in effect in a refusal to exercise jurisdiction. The primary responsibility for deciding whether criminal proceedings should be maintained lies with the Executive and not with the court.
·    Secondly, in cases involving delay, to justify a permanent stay of criminal proceedings there must be a fundamental defect which goes to the root of the trial of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences. The accused must demonstrate that the delay is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute.
·    Thirdly, circumstances that the court should consider in determining an application for a stay include: the length of the delay; reasons given by the prosecution to explain or justify the delay; the accused’s responsibility for and past attitude to the delay; proven or likely prejudice to the accused; and the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime. The critical factors are on the one hand the proven or likely prejudice to the accused, and on the other, the public interest in the prosecution and conviction of the guilty.
·    Fourthly, in order to justify a stay, it is the probability of unacceptable unfairness — rather than the possibility — that is critical.
·    Fifthly, a trial will not necessarily be unacceptably unfair even where relevant documents, recordings or other kinds of evidence have been lost or destroyed, or witnesses have died, so that the jury will be called upon to determine issues of fact on less than all of the relevant material which might bear upon the issues thrown up for determination.
·    Sixthly, the trial judge may avoid obstacles to a fair trial by evidentiary rulings — including by the exclusion of evidence which is technically admissible, but which might operate unfairly against the accused — and by directions to the jury designed to counteract any prejudice that the accused might otherwise suffer.[31]
[30](2014) 41 VR 572, 575–7 [17]–[26] (Osborn JA, Redlich JA agreeing at 589 [90], Sifris AJA agreeing at 589 [92]); [2014] VSCA 57.
[31](2015) 44 VR 335, 342–3 [40] (Priest JA, Maxwell P agreeing at 336 [1]); [2015] VSCA 2 (citations omitted) (‘Hermanus’).
Any assessment of whether exceptional circumstances warranting a permanent stay exist is a qualitative, not quantitative, exercise.[32] In cases involving significant delay, the fairness of a trial will almost invariably be compromised at least to some degree.[33] However, despite the presence of some unfairness, prejudice or forensic disadvantage, it remains possible for an accused to receive a trial that is not unacceptably unfair.[34] The central considerations remain whether the delay has rendered the trial unacceptably unfair[35] or the further prosecution of the case would amount to an abuse of process.
[32]GLJ (2023) 97 ALJR 857, 874 [52] (Kiefel CJ, Gageler and Jagot JJ); [2023] HCA 32; Dupas v The Queen (2010) 241 CLR 237, 250 [35] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2010] HCA 20.
[33]Jones (a pseudonym) v The Queen [2017] VSCA 111, [63] (Whelan and Ferguson JJA and Kidd AJA) (‘Jones’); Bauer (a pseudonym) v The Queen (2015) 46 VR 382, 389 [32] (Weinberg JA), 402 [96] (Priest JA, Maxwell P agreeing at 385 [1]–[2]); [2015] VSCA 55 (‘Bauer’). See also Kenny (a pseudonym) v The Queen [2018] VSCA 220, [63] (Taylor AJA, Priest JA agreeing at [1], Weinberg JA agreeing at [94]) (‘Kenny’); Hermanus (2015) 44 VR 335, 343–4 [42]–[43] (Priest JA, Maxwell P agreeing at 336 [1]); [2015] VSCA 2; R v Jacobi (2012) 114 SASR 227, 253 [104]–[105] (Nicholson J); [2012] SASCFC 115.
[34]Hermanus (2015) 44 VR 335, 344 [44] (Priest JA, Maxwell P agreeing at 336 [1]); [2015] VSCA 2; Jago (1989) 168 CLR 23, 47 (Brennan J); [1989] HCA 46; Longman v The Queen (1989) 168 CLR 79, 91 (Brennan, Dawson and Toohey JJ); [1989] HCA 60.
[35]Bauer (2015) 46 VR 382, 402 [96] (Priest JA, Maxwell P agreeing at 385 [1]–[2]); [2015] VSCA 55.
Where an application for a permanent stay is made on the basis that loss of evidence due to delay has resulted in a trial being unacceptably unfair, it is necessary to consider the value or importance of the lost evidence and its effect on the issues in dispute.[36] In this regard, a distinction can be drawn between a loss of evidence as a result of delay on the one hand, and a loss of an opportunity to obtain evidence on the other.[37] Where all that has been lost is an opportunity to obtain evidence from a witness or documentary record, the content of such evidence may be a matter of complete speculation and not constitute actual prejudice.[38]
[36]Lucciano (a pseudonym) v The Queen (2021) 287 A Crim R 529, 539–40 [43] (McLeish, Niall and T Forrest JJA); [2021] VSCA 12 (‘Lucciano’); Kenny [2018] VSCA 220, [67] (Taylor AJA, Priest JA agreeing at [1], Weinberg JA agreeing at [94]).
[37]Lucciano (2021) 287 A Crim R 529, 539 [42] (McLeish, Niall and T Forrest JJA); [2021] VSCA 12.
[38]Ibid.
Further, the unavailability of a witness, even a witness a party considers to be important, does not necessarily mean that a trial will be unacceptably unfair.[39] In many cases where a witness is no longer available as a result of delay, unless that witness could have offered eyewitness or alibi evidence, the content of any evidence they might have given will often be speculative or no more than contextual in nature, or both.[40]
[39]GLJ (2023) 97 ALJR 857, 874 [53] (Kiefel CJ, Gageler and Jagot JJ); [2023] HCA 32, quoting Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218, 238 [89]–[90] (Bell P, Leeming JA agreeing at 253 [182], Emmett AJA agreeing at 257–8 [207]); [2019] NSWCA 102 and R v Edwards (2009) 83 ALJR 717, 722 [31] (Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2009] HCA 20.
[40]See Morton (a pseudonym) v The Queen (2020) 281 A Crim R 307, 310 [10] (Maxwell P, dissenting); [2020] VSCA 49; Kenny [2018] VSCA 220, [72] (Taylor AJA, Priest JA agreeing at [1], Weinberg JA agreeing at [94]); Jones [2017] VSCA 111, [62]–[76] (Whelan and Ferguson JJA and Kidd AJA).
Naturally, the facts of each case must be carefully considered. However, where lost evidence is properly characterised as contextual or speculative, it is less likely that any resulting unfairness will rise to the level of unacceptable. Instead, any unfairness arising from presumptive prejudice will usually be able to be remedied by an appropriate direction to the jury.[41] That said, even where the evidence which might have been given cannot be ascertained, the absence of a witness or witnesses may still result in prejudicial unfairness. In determining whether such a circumstance has arisen, the value of the lost opportunity must be assessed from the perspective of the defence.[42]
[41]Jones [2017] VSCA 111, [62]–[76] (Whelan and Ferguson JJA and Kidd AJA); Lucciano (2021) 287 A Crim R 529, 539 [42] (McLeish, Niall and T Forrest JJA); [2021] VSCA 12. See also Jury Directions Act 2015 ss 12, 14, 16, 39, in relation to the making of a direction to the jury by a trial judge that an accused has experienced a significant forensic disadvantage.
[42]Lucciano (2021) 287 A Crim R 529, 539–40 [43] (McLeish, Niall and T Forrest JJA); [2021] VSCA 12.

Grounds 2 and 3: Error in reasoning with respect to MM and decision wrong

The applicant’s submissions

In light of the decision in GLJ, ground 2 was described by the applicant as a subset of ground 3. Thus, it is convenient to deal with these grounds together.
The applicant contends that the decision not to permanently stay the proceeding in relation to charges 6, 7 and 8 was wrong. In particular, the applicant contends that the judge’s finding based on the unavailability of MM was factually incorrect and also involved a legal error, as the trial judge failed to focus on the value of the lost opportunity from the perspective of the applicant.
The judge’s finding concerning MM has been quoted earlier. He found that MM’s denials of LMM’s allegations can be admitted into evidence, and that any further evidence beyond those denials was speculation. He referred to the availability of a forensic disadvantage direction.
The applicant submitted that there are two errors in this reasoning.
First, it was submitted that the trial judge seemed to imply that the unfairness arising from the unavailability of MM could be cured by adducing evidence from MNM (being the relevant complaint witness) that, upon the complaint being relayed to MM, MM had stated that LMM was lying. The applicant contended that such a ‘sparse piece of evidence’ was no substitute for the loss of the evidence of MM, a critical witness in the case. The applicant contrasted the value of this ‘bland, unexplained assertion in hearsay form’ from MNM with the prominence and force of carefully elicited and detailed direct testimony from MM before the jury concerning LMM lying about highly pertinent matters. This was submitted to be compounded by the fact that the sympathies of MNM would lie with LMM rather than MM. In this regard, reference was made to MNM’s evidence that she believed LMM at the time of the complaint, and still believed that LMM was not lying.
The applicant submitted that because MNM’s evidence does not make clear that she put specific allegations to MM, MM’s response was indicative of a broader knowledge that led her to conclude that allegations made against the applicant by LMM were false.
The applicant submitted that it was not to be assumed that MNM’s credit would not be in issue at trial. The Court was informed that allegations of bias will be put to MNM at trial, although the basis upon which these allegations were to be put was deliberately not disclosed at this time.
The applicant observed that notes said to have been made by MNM shortly after the time of LMM’s complaint have been destroyed, and that MNM is unclear as to exactly what she had written down at the time.
Secondly, it was submitted the trial judge was in error in finding that any further evidence MM might have been able to give was complete speculation. It was contended this was factually wrong, as MM’s disbelief of LMM’s assertions provided a sound foundation beyond speculation for thinking that MM’s evidence would not accord with allegations that she had witnessed suspicious or incriminating activity on the part of the applicant. As a matter of law, it was submitted that the correct approach was to focus upon the value of the lost opportunity, assessed from the perspective of the defence.
In this regard, it was submitted MM would have been able to provide evidence of ‘quotidian matters’ concerning the household in which the alleged offending is said to have occurred, including LMM’s asserted habit of wedging her bedroom door closed with a knife. Other ‘important aspects’ of LMM’s evidence which the applicant submitted MM, and other household members, might reasonably have been expected to be able to confirm or deny were: (1) any occasion on which the applicant’s asserted habit of entering into LMM’s bedroom had been observed; (2) LMM’s claim that she was kept ‘close to home’ and limited in her social activities; (3) LMM’s claim that she was shut in the rumpus room by MM until she had completed the household ironing; and (4) LMM’s claim that MM made threats and these threats caused her not to give evidence at the 1987 committal.
Under ground 3, it was submitted that the trial judge’s conclusion was wrong, as any trial of charges 6, 7 and 8 would be ineradicably and unacceptably unfair. This was contended to follow from the proceeding being concerned with events alleged to have occurred many years ago, which meant it would necessarily be adversely affected by the diminution of memory over time, the inability to test assertions by reference to contextual events, and the loss of any realistic ability to raise an alibi that might have been available if the allegations had been raised in a timely manner. Further, the applicant relied upon presumptive unfairness submitted to arise from the significant age of the case.[43]
[43]See ibid 541 [48] (McLeish, Niall and T Forrest JJA).
The applicant identified the following matters as highly relevant, submitting that they ought to have led the trial judge to permanently stay the proceeding.
First, while acknowledging that the allegations the subject of this case were less than 40 years old,[44] it was submitted the trial of charges 6, 7 and 8 would have the hallmarks of a case with this degree of delay. Specifically, the applicant referred to the fact that multiple members of the household in which the alleged offending is said to have occurred were now deceased, including MM, and that the trial would be conducted without any witness able to give evidence of ‘quotidian matters’ other than LMM.
[44]With 40 to 60 years being the period after which it has been suggested trials should be rare due to the forensic difficulties that delays in this order of magnitude inflict: ibid.
As part of this submission, senior counsel submitted that the presumptive prejudice started with the fact that the house in which the alleged offending the subject of charges 6, 7 and 8 took place was a small house, being a house with three bedrooms and one bathroom, in which eight or more people lived.
Secondly, it was submitted that if MM were still alive, it was probable she would have given evidence directly inconsistent with critical aspects of LMM’s evidence. The applicant contended that MM was the only witness who would have been capable of undermining LMM’s allegations about the applicant and that her death rendered this trial irredeemably and unacceptably unfair.
Such critical evidence was said to include LMM’s evidence of the uncharged act relating to MM witnessing the applicant engaging in inappropriate conduct in LMM’s bedroom. It was submitted that if MM were available to give evidence that LMM’s evidence in this regard was a lie then, absent a reason to think MM was giving false evidence, it would be sufficient in the ordinary case to persuade a jury to have reasonable doubt about the allegations the subject of charges 6, 7 and 8. This was said not to follow as a matter of law, but rather as a matter of forensic reality. Indeed, it was submitted that in such circumstances it would be forensically implausible that the applicant would be convicted.
Further, this issue was submitted to extend to part of LMM’s explanation as to why she had not gone to police earlier; namely, that she was scared of MM and too scared to go to police. It was contended that observations of persons present in the house ‘might well have belied’ any assertion that the relationship between LMM and MM was as LMM described it.
Thirdly, it was submitted that the loss of all documentary evidence ‘of any moment’ concerning the charges dismissed at the committal in 1987, now the subject of Indictment 2B, meant the applicant was deprived of significant material likely to bear adversely on LMM’s credibility and reliability. It was submitted such material might have prompted a decision to introduce evidence relating to the allegations the subject of Indictment 2B into the trial in this proceeding. While acknowledging there was some uncertainty as to the evidence actually given at the committal in 1987, reliance was placed upon the fact that the applicant was discharged after LMM gave evidence. In this context, reference was made to LMM’s evidence at the committal in this proceeding to the effect that her evidence at the 1987 committal was that she could not recall whether the alleged offending had taken place. It was submitted that the absence of a record of the 1987 committal had deprived the applicant of an opportunity to produce an account on oath that impugned LMM’s credibility and reliability in relation to matters the subject of Indictment 2B.
The applicant’s position is that, given the evidence available to him, he will not introduce matters relating to the 1987 committal or the charges the subject of Indictment 2B. However, he contended that he might have done so had he had the opportunity to consider the lost evidence.
Fourthly, it was submitted an element of oppression attended the prosecution of this case through repeated revision of how the prosecution case was put and the piecemeal provision of new evidence ‘with each new listing’.[45]
[45]Summaries of prosecution opening were filed on 21 July 2022, 17 April 2023 and 13 September 2023. The first of these contained allegations of complaints to two persons. The next added three new witnesses concerning alleged complaints. The last summary added a further complaint witness. Not all of these new allegations related to LMM.
Fifthly, in oral submissions the applicant raised a further matter relating to an uncharged act.[46] LMM has alleged that when she was seven years old, she was taken by the applicant into the lounge room of the home in which they lived at the time while MM was outside hanging the washing on the line. She alleges that the applicant anally raped her, which caused her to yell out in pain and to bleed. LMM stated that when she screamed, the applicant put his hand over her mouth and that MM remained outside. LMM’s evidence was that there was no one else home at the time.
[46]This was not raised before the trial judge despite the evidence having been the subject of a tendency notice filed on 7 April 2021 pursuant to s 97(1)(a) of the Evidence Act 2008.
While the prosecution now has no intention to lead evidence in relation to this uncharged act at trial, the applicant submitted that he might have introduced the evidence to impugn LMM’s credibility and reliability if contextual evidence had been available. Referring to the defence’s lost opportunity to raise the issue of how the incident could possibly have gone unnoticed, this contextual evidence was said to include evidence as to the thinness of the walls of the house and the possibility of neighbours or others having been in proximity.
Finally, the applicant made a submission in relation to BDM, who is alleged to have been involved in the events surrounding the charges in Indictment 2B. The applicant accepted that BDM is available to give evidence, but submitted that it was now ‘forensically implausible’ that she would be called by the applicant, because the prosecution has expressed concerns about BDM’s truthfulness and therefore must be taken to have material upon which to properly and reasonably impugn her credibility. Therefore, it was contended, any evidence BDM might have given would be of negligible value.

For completeness, we record that the applicant also made submissions about the ability of this court to re-exercise the discretion of the trial judge. In light of the decision of the High Court in GLJ (delivered after the applicant filed written submissions), it is unnecessary to address these further submissions.

The house and the occupants

It would seem that the applicant’s submission about the house where the offending is alleged to have occurred as being ‘small’ was not based on a description of the house in which LMM was residing at the time of the alleged offending.
LMM, the applicant and MM (amongst others) resided at a small house before the relevant time period the subject of charges 6, 7 and 8.[47] LMM and three of her brothers moved from this smaller house to another house around the time she was 14 years old. LMM remained in that house until she moved to Adelaide after the period of the alleged offending. This latter house was described by one witness as ‘a real big house’.[48] LMM’s evidence was that it had four bedrooms (one of which was described in terms of ‘a rumpus room with a small bedroom there’).[49]
[47]Depositions 160 [4]; Transcript of Committal Proceeding (County Court of Victoria, 7 December 2020) 8 (‘Committal’).
[48]Statement of LMM’s cousin ‘RCM’ (4 August 2022) [5].
[49]Committal, 20.
In the course of submissions, senior counsel was asked to identify the eight residents to whom he was referring in his submissions. In an aide memoire provided to the Court after the hearing, the eight people could not be exhaustively identified. This was unsurprising. LMM’s evidence was that there was family ‘coming and going all the time’.[50]
[50]Ibid 56.
There was no controversy that during the period of the alleged offending, from 1 August 1988 to 3 July 1989, LMM, MM, two of LMM’s brothers (one of whom is now deceased) and the applicant resided at MM’s then home.[51] It is also possible that another brother of LMM and a brother of the applicant (recently deceased) may have lived there at this time. Although less likely, it is possible others lived there as well.[52]
[51]Aide memoire, 1 [3].
[52]Ibid 2 [6].
The two brothers of LMM who are still alive and either lived or may have lived in the same home as LMM during the relevant time period are not intended to be called as prosecution witnesses.[53] The applicant submitted that, as no explanation had been given by the prosecution for their absence, the lack of evidence from them said very little about whether others in the house were likely to have relevant information.
[53]Counsel for the prosecution was ‘not in a position to say’ whether the two brothers who are still alive had been approached to make statements: Transcript of Proceedings, Buchanan (a pseudonym) v The King (Court of Appeal of the Supreme Court of Victoria, Emerton P, Whelan JA and Elliott AJA, 16 February 2024) 40.
The applicant submitted that it could not be concluded that those who are still alive, and who are not to give evidence, had no relevant evidence to give. It was submitted that what could be concluded is that there is to be no evidence from those witnesses, whether because the prosecution hasn’t been able to find them; or because the matter has not been properly investigated; or for some other reason, such as what was described as the ‘moveable feast’ in relation to the occupants of the house at the relevant time.

The respondent’s submissions

The respondent submitted that the circumstances could not justify a permanent stay.
In relation to MM’s absence, the respondent accepted (‘it cannot be gainsaid’) that if MM were alive she may have given evidence which was exculpatory and favourable to the applicant.
Notwithstanding that circumstance, the respondent submitted that:
•MM’s purported reaction when confronted with allegations made by LMM is admissible in evidence;
•MM’s evidence could never have gone beyond contextual evidence as she did not witness any of the charged conduct;
•the evidence MM might have given beyond her own belief was speculation; and
•the judge would be able to direct the jury as to forensic disadvantage.
In relation to the evidence concerning the committal proceeding in 1987, the respondent submitted:
•the 1987 committal concerned the offences in Indictment 2B, not the charged conduct;
•evidence will be led, or is available to the applicant, that those charges did not proceed because LMM did not give evidence or did not give evidence in support of the allegations; and
•the judge would be able to direct the jury as to forensic disadvantage.

Consideration of grounds 2 and 3

General matters

Before considering the specific matters raised, we make three general observations concerning the delay in this case.
First, it was not suggested that the delay was deliberately effected to gain a forensic advantage. That was proper. It is in the nature of cases involving childhood sexual abuse for some victims to take decades to process, and feel equipped to act on, the harm that results from abuse.[54] At the time of the offending alleged by Indictment 2B and the 1987 committal, LMM was aged 14. It appears that the publicity surrounding the applicant in 2019 encouraged LMM to provide a statement to police. By that point, MM had been deceased for a decade.[55]
[54]GLJ (2023) 97 ALJR 857, 869 [29] (Kiefel CJ, Gageler and Jagot JJ); [2023] HCA 32. See also Jury Directions Act 2015 ss 51(1)(c), 51(2), 52(4), 54.
[55]LMM has given four statements over a period of approximately three and a half years: the first statement set out her account of the offending alleged by charges 6, 7 and 8 and the surrounding circumstances. The second statement clarified a matters in the first statement. The third and fourth statements related to complaints she had made to others about the applicant’s conduct.
Secondly, delays in the present prosecution may be explained by complications which arose in preparing for a trial with multiple complainants, including an earlier interlocutory appeal by the applicant.[56] There was nothing to suggest that the late introduction of some of the complaint evidence was anything other than the result of matters coming to the prosecution’s attention and prompting investigations.
[56]Buchanan (a pseudonym) v The Queen [2022] VSCA 130.
Thirdly, although it may be argued that the alleged offending was unlikely if potential witnesses were nearby and accordingly that the unavailability of such witnesses might occasion disadvantage, the prosecution’s case is that the applicant had a tendency to offend brazenly and opportunistically, notwithstanding that others were nearby.
We turn now to the pertinent specific matters, being the position in relation to MM, MNM, the 1987 committal documents, and BDM.

The position in relation to MM

MM did not witness the offending the subject of charges 6, 7 and 8. Her responses did not suggest she could have provided the applicant with any alibi. Any evidence she might have given in relation to the Indictment 2A charges could only have been contextual.
As the respondent conceded, if MM were alive she may have given evidence which was exculpatory and favourable to the applicant.
The existing evidence is to the effect that when confronted with the contention the applicant was abusing LMM she asserted that LMM was lying. Thus, the existing evidence is at least consistent with the proposition that MM believed the allegations to be false. Implicitly, it is also consistent with the proposition that she had not witnessed conduct by the applicant which would support LMM’s complaints.
The applicant submits that MM’s assertions of lying means she must have had knowledge of facts which would support that conclusion. The applicant contends that it can be concluded that MM’s evidence would have contradicted LMM’s assertion that MM had entered the room when the applicant was there in compromising circumstances, and that that would be sufficient in the ordinary case to persuade a jury to acquit.
As to MM’s assertions that LMM was lying, in our opinion, that did not necessarily mean that MM had knowledge of facts to support those assertions. Her assertions are capable of being explained in other ways. She may have been acting to protect her son. Her denials may have been immediate reactions of disbelief or surprise. As the evidence currently stands, at no point did MM explain the basis of her denials.
As to the implicit assertion MM had not witnessed conduct by the applicant which would support LMM’s complaints, we do not accept the applicant’s characterisation of the significance of that evidence (assuming for these purposes MM would have given it). The value of any evidence MM might have given about the applicant entering LMM’s bedroom, and about MM’s witnessing inappropriate conduct by the applicant in LMM’s bedroom, must be considered in the light of LMM’s evidence not just of the charged and uncharged conduct but also of her relationship with MM, the existing evidence of MM’s denials, and the fact that MM’s attitude may be explicable by reference to the factors to which reference has been made. We certainly do not accept that the evidence of MM, the applicant’s mother, even if it were as the applicant suggests, would in the ordinary case be sufficient to persuade a jury to acquit.
All of MM’s evidence would have been contextual. While it may be concluded that her evidence would have been favourable to the applicant, its content beyond the denials, which will be in evidence, and what may be implicitly drawn from those denials, is speculative.
It is not clear that, had MM been available, the applicant would have introduced evidence of other allegations made by LMM of sexual abuse beyond those contained in Indictment 2A. Although the applicant may have lost an opportunity to attack LMM’s credibility, the introduction of evidence about the alleged offending in Indictment 2B may have been seen as occasioning significant risk to the applicant.
It may be accepted that one of the ‘quotidian matters’ MM (and others) may have given evidence about, being LMM’s asserted habit of wedging her bedroom door with a knife, would have been relevant, given its unusual nature. But there is nothing to indicate whether MM had any knowledge of that matter. What MM would have said about it is speculative. Every possibility seems open.
As to the relationship between MM and LMM, there is evidence consistent with LMM’s assertion that she was scared of MM.[57] The possibility that MM herself, or other members of the household, could have ‘belied’ her evidence must be considered in this light. Again, the content of any such evidence is speculative.
[57]Transcript of Proceedings, DPP v [Buchanan] (County Court of Victoria, Judge Brookes, 4 April 2023) 56–7 (‘Section 198B cross-examination of MNM’); Statement of MNM (5 December 2022) [10]; Statement of former police officer ‘PCU’ (3 September 2019) [7].
The alleged rape of LMM when she was aged seven occurred approximately nine years before the offending alleged in Indictment 2A. It is unlikely MM (or others, such as neighbours) could have given probative evidence of having heard, or more correctly from the applicant’s point of view, not heard, a single scream after such an elapse of time.
A fair assessment of the ‘lost’ evidence of MM, its purported value, and its effect on the issues does not reveal that any prejudice which might result from its loss would be unacceptably unfair.
Finally, we consider that any such prejudice can be addressed and mitigated by directions to the jury.

The position in relation to MNM

We are of the same view in relation to MNM and her lost notes.
The loss of MNM’s notes is not the result of any delay or the elapse of time. The notes were destroyed shortly after they were written.[58]
[58]Section 198B cross-examination of MNM, 15–16.
Although the applicant suggested that MNM’s credit will be in issue, that does not, in itself, occasion unfairness to the applicant. Nor does the destruction of MNM’s notes. There is no issue that MNM’s notes, in substance, confirmed that LMM had complained to her about abuse by the applicant.

The position in relation to the 1987 committal documents

As earlier suggested, the introduction of evidence relating to Indictment 2B might well be seen to occasion risk to the applicant. Nevertheless, should he seek to impugn LMM’s credibility, he has the benefit of her evidence in this proceeding that she gave untrue evidence in the 1987 committal to the effect that she could not remember the alleged events.

The position in relation to BDM

To the extent that the applicant relied upon the prosecution’s decision not to call BDM as a witness, this does not advance the matter.
If BDM’s evidence is seen as advancing the applicant’s case, she is available and can be called by the applicant.
Even if the applicant’s contention that BDM’s credibility could be impugned by the prosecution were she called as a witness is accepted, there is no suggestion that any such lack of credibility is attributable to the elapse of time since the relevant events.
Finally, BDM could only have given contextual evidence on the trial of Indictment 2A. Such evidence as she might give concerns the events the subject of Indictment 2B. As discussed, the adducing of evidence about the Indictment 2B events would represent potential risk to the applicant.

Conclusion on grounds 2 and 3

For these reasons, the judge’s refusal to grant a permanent stay was correct.
A fair assessment of the ‘lost’ evidence does not reveal a level of unfairness which cannot be addressed and mitigated by appropriate directions.
The public interest in trying allegations of serious criminal conduct such as those the subject of charges 6, 7 and 8 outweighs any possible prejudice the applicant may face because of the delay, in our opinion.
We agree, as the applicant submitted, that the judge had no advantage over this Court in determining whether a stay should be granted. However, for completeness, we note that he presided over the s 198B examinations in late 2022 and 2023. Thus, his Honour had had the benefit of viewing the evidence of critical witnesses at the time he refused a permanent stay.[59]
[59]Cf Warren (1979) 142 CLR 531, 552 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9.
Leave to appeal on proposed grounds 2 and 3 is refused.

Ground 1: Failure to give adequate reasons

In light of the conclusion reached in relation to grounds 2 and 3 (and the High Court’s direction in GLJ for an appeal court to adopt an evaluative approach), it is unnecessary to consider ground 1. It does appear that, in saying MM was confronted by a complaint witness about finding the applicant in a compromising position in LMM’s bedroom, as opposed to a more general allegation, the trial judge was in error. None of the evidence of the complaint witnesses was to this effect.

Conclusion

In summary, although the fairness of the trial of charges 6, 7 and 8 will be compromised to some degree because of the delay in bringing the charges against the applicant, the value of the defence’s lost opportunity does not give rise to an unacceptable unfairness such that charges 6, 7 and 8 of the indictment ought to be permanently stayed.
Accordingly, the application for leave to appeal is refused.

[2024] VSCA 50

28 March 2024