Charles Hagan (a pseudonym)[1] v The Queen
[2019] VSCA 200
•13 September 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0167
| CHARLES HAGAN (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]Because this is an interlocutory proceeding, a pseudonym has been used in the place of the name of the applicant.
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| JUDGES: | BEACH JA and KIDD AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 September 2019 |
| DATE OF ORDERS: | 12 September 2019 |
| DATE OF REASONS: | 13 September 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 200 |
| RULING APPEALED FROM: | DPP v [Hagan] (Unreported, County Court of Victoria, Judge Quin, 28 August 2019) |
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CRIMINAL LAW – Appeal – Interlocutory appeal – Review of refusal to certify – Stay application – Application for permanent stay on basis of earlier allegations and proceedings – Whether current proceeding involved unacceptable injustice, unfairness or oppression – Public interest in matters being brought to trial – Application for permanent stay refused by trial judge – Judge plainly correct – No error established – Application to review refusal of certification and application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann QC with Mr N J Goodfellow | Victoria Legal Aid |
| For the Respondent | Mr A McKenry | Mr J Cain, Solicitor for Public Prosecutions |
BEACH JA
KIDD AJA:
The applicant is charged, on indictment, with 24 counts of sexual penetration of a child under 16 years against a complainant, K, between 26 April 2003 and 25 April 2004. The offending against K, who was born in 1993, is alleged to have been committed when she was 10 years of age.
Before the empanelment of a jury in the trial, the applicant unsuccessfully applied to the trial judge for a permanent stay of the charges relating to K.[2] The applicant then applied for a certificate under s 295(3) of the Criminal Procedure Act 2009. This application was also refused by the judge.
[2]DPP v [Hagan] (Unreported, County Court of Victoria, Judge Quin, 28 August 2019).
Subsequently, the applicant filed applications in this Court for a review of the decision of the judge not to grant that certificate, and for leave to appeal against the decision of the judge refusing his application for a permanent stay. At the conclusion of the hearing of these applications, we made orders refusing them and said we would publish reasons in due course. These are those reasons.
The Crown case
The Crown case is that the applicant’s offending occurred on three separate occasions, described in the prosecution opening as ‘Incident 1’, ‘Incident 2’ and ‘Incident 3’. Charges 1–12 are alleged to have occurred during the course of Incident 1; charges 13–18 are alleged to have occurred during Incident 2; and charges 19–24 are alleged to have occurred during Incident 3.
Incident 1 (charges 1-12)
The Crown alleged that when K was 10 years old, she was on holiday staying with her father, his wife (not her mother) and their children. While staying in her father’s home, K went with the rest of the household to a barbecue at the applicant’s house.
While K was at the applicant’s house, K’s father and the applicant are alleged to have ‘dragged’ K upstairs to the applicant’s bedroom. The Crown alleges that, while in the applicant’s bedroom, K’s father and the applicant performed various acts of penile and digital penetration of K’s mouth, vagina and anus.
Incident 2 (charges 13-18)
Incident 2 concerns an occasion which K recalls occurring on a Saturday when she was 10 years of age. Her father took her to the applicant’s house. K was again ‘dragged upstairs’ to the applicant’s bedroom. On this occasion, there were several males waiting. The Crown case is that they each took turns to insert their penises into K’s mouth, vagina and anus.
Incident 3 (charges 19-24)
The Crown case is that Incident 3 occurred on the day following Incident 2. Again, K’s father took her to the applicant’s house. Again, K’s father, the applicant and unknown males are alleged to have taken turns penetrating K’s mouth, vagina and anus with their penises.
The application to the judge
As the judge observed in her reasons for refusing the applicant’s application for a stay, in order to understand the basis of that application it is necessary to set out some relevant background.
In 2007, the applicant was charged with three counts of committing an indecent act with, or in the presence of, a child under the age of 16, and one count of assault with intent to rape. The offending was, as with the charges the subject of the present applications, alleged to have been committed against K. The matters giving rise to these four charges were, however, alleged to have occurred during different time frames from the present charges: that is, between 1 July 2005 and 30 June 2006, in relation to two of the charges; and between 20 December 2006 and 31 December 2006 in relation to the other two charges. The factual bases of the four charges were contained in two VAREs that were conducted with K in June and August 2007.
In the first VARE, K described two matters as follows:
(1) At around Christmas 2006, K and the applicant were in the applicant’s lounge when he pushed K onto a chair and said, ‘you’re not going anywhere unless you fuck me’. K’s evidence on the VARE was that the applicant then ‘didn’t do anything’.
(2) On occasion, the applicant used MSN to send K pictures of penises and vaginas and people having sex, saying that he wanted to ‘fuck’ her. When asked, in the first VARE, as to the number of occasions on which this happened and when it happened, K said ‘it’s happened about twice’ and that it happened at around Christmas 2006 and in April 2007.
Having described these matters, K was asked whether there was anything else about the applicant that she wanted to talk about. She responded:
No. That’s about all I know about him.
In her second VARE, K said that she had ‘come here to talk … today about — more about [the applicant] and what he did’. She then described an occasion as follows:
There was one day he took me up to his room and that he got undressed and I — and I didn’t know he was getting undressed till I turned around and looked. And then I turned back around to where I was facing, and he told me that I could either get undressed or he would undress me and I yelled out to dad and dad came up and said that, ‘just leave her alone’ and dad didn’t do anything about it, except for telling him off.
K was then asked whether there was anything else that she wanted to talk about in respect of the applicant. She responded:
And he pushed me off the chair one day and felt my boobs and pretty much did what he did to me when I was on the lounge chair.
In response to further questioning in the second VARE, K said that these two additional matters happened at the applicant’s house ‘about a year and a half’ ago. We interpolate that this would mean they occurred in the first half of 2006.
In relation to the first of the matters referred to in the second VARE, K provided additional detail, saying that before the episode in the bedroom, the applicant said to her, ‘go up to my room and if you don’t go up to my room, I’ll drag you up the stairs’. K said that she walked up the stairs because she ‘didn’t want to get dragged up the stairs’. As to timing, the applicant said that this incident occurred before the matters that she described in her first VARE. She then said that it happened ‘after New Years’ in 2007. K also said that after she left the applicant’s bedroom, the applicant pushed her up against a wall and held her against the wall so she could not escape.
In relation to the second matter described in the second VARE, K said that the applicant pushed her off a chair in the dining room and ‘felt [her] boobs’.
The applicant was tried, and subsequently acquitted, in respect of the four charges laid against him in 2007. He was acquitted by the jury in respect of three of the charges, and later by this Court in respect of the fourth charge.
The applicant’s submission to the judge in support of the stay that he sought may be summarised as follows:
(1) There was unacceptable unfairness to the applicant due to the previous allegations being made by K and ‘the impossibility of running [the present] trial and cross-examining her without reference being made to the 2008 proceedings’.
(2) The applicant was entitled to the full benefit of the acquittals in respect of the 2008 proceedings. That could not occur ‘if the evidence [of the earlier proceedings] was before the jury’.
(3) The present proceedings are a ‘re-litigation to a large extent of previous allegations that K had made’.
(4) No judicial direction would be able ‘to cure this unacceptable unfairness’.
In rejecting the application for a stay, the judge noted that the prosecution did not propose to lead any evidence of the 2008 proceedings. The judge said that defence counsel could cross-examine K about her account in the 2008 proceedings and ‘her maintaining at that time … that there were no other incidents relating to [the applicant]’. Her Honour said that it did not, however, follow that adopting that course would compel the defence to reveal that the allegations that were the basis of the 2008 proceedings had resulted in the applicant being charged, tried or acquitted at that time.
The judge went on to say that if defence counsel chose to introduce evidence or cross-examine witnesses as to the applicant’s acquittal in the 2008 proceedings then it would be necessary for her to give the jury directions so as to ensure that that evidence (or its use) did not undermine the applicant’s acquittals.
Ultimately, the judge rejected the application for a stay because she concluded that a careful analysis of the material relating to the 2008 proceedings and the present proceeding revealed significant and important differences in the allegations made by K ‘such as to view it as highly unlikely that K [was] referring to the same incidents’. The judge placed particular emphasis on the fact that the allegations made in relation to the present charges are penetrative and significantly more violent than those made during the course of the 2008 proceedings. The judge concluded that, properly analysed, the present case is not a re-agitation of the matters alleged in the 2008 proceedings.
Following the refusal of the stay application, the applicant applied to the judge for her to certify that her decision refusing the stay was ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.[3] The judge refused this application saying that she was not satisfied that her decision was attended with sufficient doubt so as to justify certification.
[3]See s 295(3)(b) of the Criminal Procedure Act 2009.
Parties’ contentions
In his summary of contentions filed in this Court, the applicant identified two proposed grounds of appeal. In argument, however, senior counsel for the applicant abandoned the second ground and advanced argument only in respect of the following ground:
1.The trial judge erred in refusing to permanently stay the charges relating to [K] by giving insufficient weight to the unacceptable unfairness arising from the inability of the current proceedings to take place without reference to the previous allegations by [K], the evidence in the previous trial and the eventual acquittal.
The applicant’s summary of contentions asserted that the judge erred ‘in disregarding the striking similarities’ between the complaints made by K giving rise to the 2008 proceedings and the complaints made by her giving rise to the present charges. The judge also erred by ‘failing to identify how the jury could be directed to overcome the overwhelming prejudice suffered by the applicant’ as a result of what would be a necessary exploration of the 2008 proceedings and the applicant’s acquittal.
The applicant also complained about the judge’s failure to address what was submitted to be an unfairness to the applicant in relation to the prosecution’s intention to call expert psychiatric evidence and other evidence to explain K’s failure in 2007 and 2008 to make the allegations that she now makes against the applicant. It was submitted that this evidence, and most particularly the psychiatric evidence,[4] presupposed the validity of the earlier charges and thus undermined the applicant’s acquittals in respect of them. These submissions were the focus of the applicant’s oral argument before us.
[4]The substance of which was said to be contained in a report dated 5 March 2018 written by Dr Teresa Flower.
In response, the respondent stated that it would not seek to introduce or rely upon evidence of K’s previous allegations. It submitted that the applicant was able to properly test K’s evidence without reference to the previous proceedings or without having the jury call the applicant’s earlier acquittals into question. Moreover, if the applicant elected to introduce the fact of the previous trial and acquittal into evidence, then the jury could be directed as to the proper use of this evidence.
In argument, we raised with counsel for the Crown a problem we saw in relation to the psychiatric evidence about which the applicant made complaint. It appeared to us that there was some force in the argument that this evidence impermissibly sought to undermine the applicant’s previous acquittals. Having heard the argument, counsel for the respondent very fairly accepted that the Crown should not call the psychiatric evidence it had previously indicated might be called. This concession was entirely appropriate.
Analysis
The principles governing the permanent stay of criminal proceedings are not in doubt. Relevant principles were summarised in Eastman,[5] both at first instance,[6] and on appeal,[7] as follows:
[5]Eastman v DPP [No 13] [2016] ACTCA 65 (‘Eastman’).
[6]Ashley AJ.
[7]Osborn, Whelan and Priest AJJ.
1.A permanent stay of a proceeding may be ordered to prevent an abuse of process. The central question is ‘whether there is a fundamental defect “of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences”’.
2.‘Abuse of process’ encompasses not only circumstances within the narrow conception of that term — such as bringing a proceeding for an improper purpose, or pursuing a proceeding which is foredoomed to fail — but also the prosecution of a criminal proceeding in such a way as to make it unfair, an instrument of oppression.
3.‘It is well established that the circumstances in which proceedings may be found to be an abuse of process are not susceptible of exhaustive definition’.
4.A heavy onus lies upon an applicant for a permanent stay of proceedings to persuade a court to make the order sought. Grant of a permanent stay is a remedy which will only be granted in a rare case, though see the significance of ‘rarity’ as explained in Dupas v R. In a case of alleged unfairness, a court should not order a stay unless it is satisfied that there are no other means, such as by directions of the trial judge, of bringing about a fair trial. So, in Dupas v R, the High Court said this:
Characterising a case as extreme or singular is to recognise the rarity of a situation in which the unfair consequences of an apprehended defect in a trial cannot be relieved against by the trial judge during the course of a trial. There is no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered. In seeking to apply the relevant principle in Glennon, the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’.
5.In determining whether an application for a permanent stay of proceedings should succeed:
A further consideration is the need to take into account the substantial public interest of the community in having those who are charged with criminal offences brought to trial, the ‘social imperative’ as Nettle JA called it, as a permanent stay is tantamount to a continuing immunity from prosecution. Because of this public interest, fairness to the accused is not the only consideration bearing on a court’s decision as to whether a trial should proceed.
What the Court there said calls to mind this observation of Brennan J in Jago v District Court (NSW):
If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law, and whether the legal right of an accused truly stated is a right to a trial as fair as the courts can make it.
6.The applicant for a stay must establish that the continuation of the proceedings would — not could — involve unacceptable injustice or unfairness or be so unfairly and unjustifiably oppressive as to constitute an abuse of process.[8]
[8]Eastman [2016] ACTCA 65 [35] (citations omitted). See further, Strickland (a pseudonym) v DPP (2018) 361 ALR 23, 51 [106] (Kiefel CJ, Bell and Nettle JJ); 58–9 [139] and 64 [164] (Gageler J); 65 [169]–[170] (Keane J); 72–3 [202]–[203] (Gordon J); 81 [248] (Edelman J).
The applicant’s argument that the psychiatric evidence that the Crown had previously foreshadowed it may call (dependent upon the way in which the trial progressed) was his most significant point. It was not a point that was specifically put to the trial judge and therefore could not have formed a basis for holding that the trial judge erred in refusing the stay application. That said, as we have already observed, the Crown fairly conceded in argument that it would not seek to lead this evidence.
In support of his submissions, the applicant relied upon R v Carroll.[9] In Carroll, Gleeson CJ and Hayne J accepted that there may be cases where a second prosecution ‘is argued to be oppressive and an abuse of process, even though there is no direct inconsistency between the new charge and [an] earlier verdict’.[10] In the same decision, McHugh J said:
Yet if the prosecution can bring further and different charges arising out of facts all or many of which were before the court in an earlier prosecution, the accused is as effectively harassed as if he was being tried again on the same charge. Similarly, if other proceedings could be brought that had the tendency to contradict or undermine the effect of an acquittal, an acquitted person might effectively lose the benefit of the acquittal and the full protection of the double jeopardy principle. Plainly, the formal pleas of autrefois convict or autrefois acquit were inadequate to give effect to the full rationale of the double jeopardy rule and the policy behind it in some cases where the prosecution brought successive proceedings against an accused person. The pleas of autrefois convict and autrefois acquit were confined to successive charges based on the same or substantially the same facts. They do not protect the accused against prosecutorial harassment in many cases that, in substance but not in form, offend the double jeopardy principle.
To remedy these and other defects in the application of the double jeopardy principle, the common law courts have applied other weapons in the judicial armoury to make the double jeopardy principle more effective. In particular, they now intervene to protect the accused by staying proceedings that they consider are an abuse of their processes.[11]
[9](2002) 213 CLR 635 (‘Carroll’).
[10]Ibid 650 [47].
[11]Ibid 673 [130]–[131].
In our view, the judge was plainly correct to refuse the applicant’s application for a stay. As argued before the judge, there was simply no basis upon which the judge could have concluded that the continuation of the present charges would ‘involve unacceptable injustice or unfairness or be so unfairly and unjustifiably oppressive as to constitute an abuse of process’. Such argument as might have been made about the foreshadowed psychiatric evidence is now of no moment having regard to the Crown’s concession that it will not call that evidence.
While one would expect that K will, in her evidence, if asked, maintain that what she said in 2007 and 2008 giving rise to, and in relation to, the earlier charges of which the applicant was acquitted is true, that does not form a basis upon which the present charges should be stayed. That is a matter well capable of being dealt with by the trial judge in the management of the trial and in the giving of appropriate directions to the jury should the need arise. Any unfairness will be ameliorated by a direction that the applicant was acquitted of those complaints. The risk of the jury misusing the earlier allegations is further reduced by the fact they are of a considerably less serious kind than the current charged events.
It is worth highlighting that the current charges allege extremely serious offending involving violent and penetrative group conduct against a young child. There is a powerful public interest that such matters be brought to trial.
Ultimately, an assessment of the fairness of a trial is best undertaken by reference to the trial as a whole, at its conclusion. Should the applicant be convicted, he will have the opportunity to make this contention by way of a substantive appeal.
Conclusion
The judge was plainly correct. More specifically, no error of the kind required to be demonstrated[12] has been established. As a result, at the conclusion of argument we refused the application to review the judge’s failure to certify and, consequentially, refused the application for leave to appeal.
[12]As to which, see Hermanus (a pseudonym) v The Queen (2015) 44 VR 335, 341 [38].
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