Carson (a Pseudonym) v The Queen

[2019] VSCA 4

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0288

DAVIN CARSON (a pseudonym)[1]	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	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 and T FORREST JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 January 2019
DATE OF JUDGMENT:	25 January 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 4
JUDGMENT APPEALED FROM:	DPP v [Carson] (Unreported, County Court of Victoria, Judge Ryan, 18 December 2018)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Refusal of application for permanent stay – Refusal to certify for interlocutory appeal – Application to review refusal to certify – Delay of up to 48 years since alleged offending – Unavailability of witnesses – Whether incurable prejudice – Evaluation of lost forensic opportunity – Public interest in prosecution of serious offences – No error in refusal to certify – Application refused – Hermanus (a pseudonym) v The Queen (2015) 44 VR 335 applied – Criminal Procedure Act 2009 ss 295(3), 296.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D D Gurvich QC with Mr P J Smallwood	Williams Winter Pty Ltd
For the Respondent	Ms C J C Parkes with Ms D M Guesdon	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
FORREST JA:

Summary

1. The applicant is due to stand trial in the County Court on 4 February 2019.  He faces a large number of charges of child sex abuse, involving 20 complainants.  All of the complainants were pupils at a rural secondary school at a time when the applicant was the headmaster of that school.

1. The charges are very serious indeed.  They include multiple charges of buggery with a person under 14, of indecent assault and of common assault.  The alleged conduct is said to have occurred more than four decades ago, in the period January 1971 – December 1976. 

1. The applicant sought a permanent stay of the charges against him based on a combination of factors, namely, the extremely long delay, the associated forensic disadvantage in challenging the evidence of the complainants, and his ill health.  The hearing of the application before the trial judge took four days.  On 18 December 2018, the judge refused the stay application.

1. In his Honour’s view, the applicant had

not met the heavy onus that he bears that would result in the rare and exceptional step of permanently staying an indictment.

The judge also refused an application under s 295(3) of the Criminal Procedure Act 2009 for him to certify the decision for an interlocutory appeal.  The applicant now applies to review the refusal to certify. 

1. For reasons which follow, we would refuse the application for review.  It was reasonably open to his Honour to conclude that the stay decision was not attended by sufficient doubt to warrant certification.[2]

   [2]Stannard v DPP (2010) 28 VR 84, 90 [27]; Frazier (a pseudonym) v The Queen [2017] VSCA 370 [7]–[8].

1. Since the argument in this Court was directed at the merits of the stay decision itself, we would add that it was well open to his Honour to refuse a stay.  As counsel for the Director submitted, his Honour’s application of the relevant principles to the particular circumstances of the case was unimpeachable. 

1. In short, such forensic disadvantage as the applicant could identify was moderate in all the circumstances, and his Honour was right to conclude that it could be adequately addressed by a forensic disadvantage direction.[3]  Given the objective seriousness of the charges, the public interest in their being prosecuted was a very significant factor in the exercise of the discretion. 

   [3]Jury Directions Act 2015 s 39.

Forensic disadvantage

1. It is unnecessary for the purposes of these reasons to set out the details of the alleged offending, or to identify the full range of matters on which the applicant relied in his submissions to the judge.  Those matters are fully dealt with in the judge’s detailed reasons for refusing the stay application.  Nor is it necessary to refer to the applicable principles.  It was common ground that they were comprehensively stated in the judgment of Priest JA in Hermanus (a pseudonym) v The Queen,[4] to which his Honour referred. 

   [4](2015) 44 VR 335, 342 [40] (‘Hermanus’).

1. At the forefront of the applicant’s submissions in this Court was the disadvantage said to flow from the unavailability (as witnesses) of certain individuals who worked at the school during the relevant period.  Specific reference was made to the absence of the applicant’s then secretary, who occupied an office near his.  According to the written contentions:

She had a very close working relationship with the applicant and a thorough knowledge of his movements.  Had this case proceeded without delay, [she] would have been an important witness.

1. Also unavailable are certain other members of staff at the school who, it is alleged, were responsible for sending individual complainants to the applicant’s office at night, where he allegedly offended against them.  As the judge noted, one such former staff member had provided a statement, in which he said he had no recollection of sending any boy to the principal’s office.  On legal advice, however, he had refused to adopt it in a sworn statement.

1. The judge ruled that the matters about which the missing witnesses might have given evidence were ‘at the periphery’ and that what they might have said, had they been available to give evidence, was ‘mere speculation’.  His Honour went on:

If I’m wrong about this and prejudice and/or forensic disadvantage attaches to the accused it is capable of being ameliorated by appropriate and strong forensic disadvantage directions.

His Honour pointed out that none of the missing witnesses was said to be an alibi witness or an eye-witness to any of the alleged offending.   

1. In this Court, counsel for the applicant accepted that it was, of necessity, impossible to know what any of these witnesses might have been able to say had they been available.  What could not be disputed, however, was ‘that they could have said something’.[5]

   [5]Emphasis in original.

1. Before the judge, and again in this Court, counsel for the applicant relied on what Greg James J, as a member of the New South Wales Court of Criminal Appeal in R v Littler,[6] described as a ‘significant matter of prejudice’, namely,

the effect of delay on the applicant’s ability to remember with reasonable reliability what I might call the contextual facts of the alleged occurrences. These comprise, not only the possible presence of significant witnesses to some of the alleged offences or the alleged surrounding circumstances but also the actual timetable of activities and responsibilities undertaken by the applicant and his relationship, if any, with the complainants.

And further:

To make a rather obvious point, if the applicant had committed the alleged offences, it seems likely that he could remember doing so, at least in general terms (though it is important to note that specific offences are alleged).  If, on the other hand, he did not commit the alleged offences, then his knowledge of and recollections about the complainants, his interactions with them, and the surrounding circumstances, might well be extremely vague.[7]

[6][2001] NSWCCA 173.

[7]Ibid.

Consideration

1. Every lengthy delay between offence and trial will occasion some prejudice.  In evaluating the extent of that prejudice and whether an incurably unfair trial will result, the Court will examine a range of factors and will seek to achieve a balance between the public interest in bringing offenders to trial and the competing public interest in preserving the right of an accused person to a fair trial.[8]

   [8]R v FJL (2014) 41 VR 572, 576 [21].

1. As Priest JA said in Hermanus, in a passage quoted by the judge:

The law contemplates … that even in cases of very long delay, it remains possible for an accused to receive a trial which is not unacceptably unfair, despite the trial being attended to some extent by unfairness, prejudice or forensic disadvantage.[9]

That is, of course, the assumption which underpins the recognition at common law, now superseded by statutory provision, that an accused person may seek, and a trial judge must give, a direction on forensic disadvantage.[10]

[9](2015) 44 VR 335, 344 [44].

[10]Bauer (2015) 46 VR 382, 407 [117].

1. As this Court has said previously,[11] the task of assessing forensic disadvantage for this purpose requires the judge to evaluate the lost forensic opportunity, that is, the opportunity to hear from particular witnesses or to make other investigations.  Of necessity, the judge must consider the likely content of the ‘lost’ evidence and its importance in the context of the trial.  That will turn on what the missing witnesses are likely to have seen, or heard, of the alleged offending, and the extent to which such evidence would have been likely to affect a jury’s evaluation of the evidence to be given by individual complainants.

   [11]Jones (a pseudonym) v The Queen [2017] VSCA 111 [69]; Kenny (a pseudonym) v The Queen [2018] VSCA 220 [67] (‘Kenny’).

1. To take an example discussed with counsel during argument, if there were an allegation that sexual offending had taken place in the midst of a social event attended by a number of persons, or at night in a crowded dormitory, then it would ordinarily be assumed that the evidence of others present when the alleged offending occurred would be very significant, and its absence likely to create significant forensic disadvantage.  In the present case, however, none of the missing witnesses is said to have been in a position to give evidence of that kind.  That is what his Honour was referring to in expressing the view that the missing evidence was ‘at the periphery’.  In our respectful view, it was well open to his Honour to characterise it in those terms. 

1. As is very often the case with sexual offending, the conduct alleged by the various complainants is alleged to have taken place in private, behind closed doors, or otherwise out of view.  The critical issue in the trial will be the credibility of the accounts which the respective complainants give of what they say occurred — before, during and after the alleged offending.  There is no reason to think that the absence of evidence from the unavailable witnesses will render the trial ‘unacceptably unfair’.[12]  The content of the lost evidence is simply unknown.  The best that can be said on the applicant’s behalf is that he has lost the chance of addressing evidence that might support his denials.  Its potential importance to the trial was, necessarily, a matter of pure speculation.

   [12]Kenny [2018] VSCA 220 [73]–[75].

1. The present case is quite different from Green v The Queen,[13] on which the applicant relied.  There, the alleged sexual offending was committed by the son of the complainant’s foster parents.  By the time charges were laid, both foster parents had died.  This Court (Priest, Kaye and Coghlan JJA) concluded that their absence ‘would constitute a significant disadvantage to the [accused] in defending the charges against him’.[14]  In their Honours’ view:

[T]he circumstances in which the complainant was living in the house, as described by her, are an integral concomitant of the circumstances in which she claims to have been sexually abused by the [accused].  They are not a matter of peripheral detail, but rather of some central importance in the outcome of the charges brought against the [accused].[15]

[13][2017] VSCA 277.

[14]Ibid [83]–[84].

[15]Ibid [85].

1. Counsel for the applicant also highlighted the ‘between dates’ form of the individual charges.  In most cases, the period within which the conduct is alleged to have occurred is a period of 12 months but, in a few instances, it is longer.  This ‘lack of specificity’ was said to increase the degree of difficulty of preparing to defend the charges.[16]  So much may be accepted, but this is a common enough feature of allegations of sexual offending, even when complaint is made much more promptly than here.  There is nothing exceptional about this case. 

   [16]Longman v The Queen (1989) 168 CLR 79, 108.

1. Finally, complaint is made about the absence of a ‘reliable description’ of the applicant’s office and of other locations in which he is alleged to have committed offences.  As the judge pointed out, however, a good deal of evidence on these matters is to be found in the complainants’ statements and in the applicant’s record of interview.  The judge concluded ― and we agree ― that the available material provides adequate scope for cross-examination on issues such as opportunity and the risk of discovery.

1. We refer finally to the public interest in the prosecution of serious criminal charges.  As counsel for the applicant acknowledged, this is a recognised consideration on a stay application.[17]  Counsel conceded ― properly, in our view ― that the more serious the offences charged, the greater the weight which can properly be attached to this consideration. 

   [17]Jago v District Court (NSW) (1989) 168 CLR 23, 61, 77.

1. In cases such as the present, where what is alleged is institutional child sexual abuse of a very serious kind, the public interest was a consideration to which the judge was entitled to give very considerable weight.  Moreover, long delay in complaint is a recognised concomitant of sexual abuse of this kind.[18]  Weighing the public interest requires that proper regard be had to the interests of putative victims of such abuse.  In a case like this, when the very delay relied on by the accused may be the direct result of the conduct alleged, it is entirely appropriate that the matters relied on in support of the stay application are subjected to the kind of rigorous scrutiny exemplified by his Honour’s ruling. 

   [18]Royal Commission into Institutional Responses to Child Sexual Abuse, (Final Report, December 2017) vol 4, 9–17, ch 4.

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