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Carson (a Pseudonym) v The Queen

Carson (a Pseudonym) v The Queen

Case [2019] VSCA 4 25 January 2019

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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

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.

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.

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.

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.

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…

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 Carson (a Pseudonym) v The Queen

Details

AGLC: Carson (a Pseudonym) v The Queen [2019] VSCA 4
Case: [2019] VSCA 4
Decision Date: 25 January 2019

CaseChat Overview and Summary

The case of Carson (a pseudonym) v The Queen concerned an appeal against the refusal of an application for a permanent stay of proceedings due to significant delays and the unavailability of witnesses. The appellant, Carson, sought a permanent stay on the basis of incurable prejudice stemming from the delay and unavailability of witnesses, which amounted to up to 48 years since the alleged offences. The primary legal issues before the court were whether the delay and unavailability of witnesses constituted incurable prejudice and whether the public interest in prosecuting serious offences outweighed the appellant’s rights.

The court considered the principles established in Hermanus (a pseudonym) v The Queen, where the High Court outlined the factors to be weighed in determining whether a stay should be granted due to delay. The court assessed the lost forensic opportunity, the reasons for the delay, and the public interest in the prosecution. The court determined that the delay in this case, while significant, was not of such a nature as to render the trial unfair. The unavailability of witnesses was also considered, but the court found that the lost forensic opportunity did not irreparably prejudice the appellant’s right to a fair trial. Furthermore, the court weighed the public interest in the prosecution of serious offences, concluding that it was paramount.

In conclusion, the court found no error in the trial judge's decision to refuse the application for a permanent stay. The application to review the refusal to certify for interlocutory appeal was also dismissed. The court held that the factors considered did not support a finding of incurable prejudice, and the public interest in prosecuting serious offences was sufficiently compelling. Consequently, the appeal and the application for review were both refused.

Orders