Charles Hagan (a pseudonym)[1] v The Queen - [2019] VSCA 200

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.

---

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)

---

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.

---

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…

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.

Keep reading for free

Create a free CaseChat account to read Charles Hagan (a pseudonym)[1] v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] VSCA 200
Decision Date: 13 September 2019

CaseChat Overview and Summary

The case involves Charles Hagan, who is appealing against a decision made by the trial judge to refuse certification and stay of proceedings against him. The nature of the dispute is criminal in nature, and the appeal was heard by the High Court of Australia. The appeal is an interlocutory one, brought in an effort to review the trial judge's refusal to certify the matter for appeal and to grant a stay of the proceedings. The matter before the court involved the refusal by the trial judge to certify the matter for appeal, which was a decision that Hagan sought to have reviewed. Additionally, Hagan had applied for a permanent stay on the basis of earlier allegations and proceedings, arguing that the current proceeding involved unacceptable injustice, unfairness, or oppression.

The legal issues that the court was required to decide were whether the trial judge's refusal to certify the matter for appeal was plainly correct and whether there had been any error in the judge's decision. The court also had to consider whether there was an unacceptable injustice, unfairness, or oppression in the current proceeding and whether the public interest in matters being brought to trial was outweighed by the prejudice to the applicant. The key legal issue before the court was whether the trial judge had erred in refusing to certify the matter for appeal and to grant a permanent stay of the proceedings.

The court found that the trial judge had not erred in refusing to certify the matter for appeal and to grant a permanent stay of the proceedings. The court found that the trial judge had properly considered the relevant factors and that there was no unacceptable injustice, unfairness, or oppression in the current proceeding. The court also found that the public interest in matters being brought to trial outweighed any prejudice to the applicant. The court held that the trial judge's decision was plainly correct and that no error had been established. The application to review the refusal of certification and application for leave to appeal was therefore refused.

In conclusion, the High Court of Australia upheld the trial judge's decision to refuse certification and to deny a permanent stay of the proceedings against Hagan. The court found that the trial judge had not erred in his decision and that there was no unacceptable injustice, unfairness, or oppression in the current proceeding. The court also found that the public interest in matters being brought to trial outweighed any prejudice to Hagan. The application to review the refusal of certification and application for leave to appeal was therefore dismissed.

Orders