Chris Bradley (a pseudonym)[1] v The Queen - [2017] VSCA 332

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0187

CHRIS BRADLEY (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	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:	WEINBERG and KYROU JJA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 November 2017
DATE OF JUDGMENT:	15 November 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 332
JUDGMENT APPEALED FROM:	DPP v [Bradley (a Pseudonym)] Ruling (Unreported, County Court of Victoria, Judge Bourke, 29 August 2017)

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CRIMINAL LAW – Interlocutory appeal – Application to review decision by County Court judge refusing certification under s 295(3) of the Criminal Procedure Act 2009 – Applicant charged with multiple offences involving three young girls – Charges included carnal knowledge of a girl under the age of 16, and carnal knowledge of an unmarried female between the ages of 16 and 18 – Offences alleged to have occurred between 1971 and 1975 –Whether trial on s 50 of the Crimes Act 1958 charges necessarily unfair – Whether permanent stay should be granted – Reasonably open for trial judge to refuse permanent stay – Application for review dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Condon QC	Leanne Warren & Associates
For the Crown	Mr B F Kissane QC	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA

KYROU JA
BEALE AJA:

The applicant seeks review of a decision by a County Court judge refusing certification under s 295(3) of the Criminal Procedure Act 2009. This is to enable him to seek leave to appeal from the judge’s decision refusing to grant a permanent stay on four of 17 charges involving sexual offences against young girls. Self-evidently, given that the application is for a permanent stay, no jury has yet been empanelled.

The application for review of the judge’s refusal to certify is brought pursuant to s 296 of the Criminal Procedure Act 2009. It necessarily entails consideration of the merits of a proposed interlocutory appeal, in accordance with the requirements of ss 295(3) and 297.

All of the offences charged were said to have been committed between 1971 and 1975. There were three complainants in all; ‘BJ’, ‘HA’ and ‘CJ’. The charges laid were as follows:

BJ
Charges 1-5 (charges 1, 2 and 4 being indecent assault contrary to s 55(1) of the Crimes Act 1958 and charges 3 and 5 being carnal knowledge of a girl of or above the age of 10 years and under the age of 16 years contrary to s 48(1) of the same Act).
HA
Charges 6–8 (all being carnal knowledge of a girl of or above the age of 10 years and under the age of 16 years contrary to s 48(1) of the Crimes Act 1958).
CJ
Charges 9-13 (all being carnal knowledge of a girl of or above the age of 10 years and under the age of…

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.

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Details

Case: [2017] VSCA 332
Decision Date: 15 November 2017

CaseChat Overview and Summary

Chris Bradley, pseudonymously referred to in the proceedings, sought a review of a County Court judge’s decision to refuse certification of an appeal under section 295(3) of the Criminal Procedure Act 2009. Bradley was charged with multiple offences involving three young girls, including carnal knowledge of a girl under the age of 16, and carnal knowledge of an unmarried female between the ages of 16 and 18. The alleged offences took place between 1971 and 1975. The central issue before the court was whether the trial on the charges under section 50 of the Crimes Act 1958 would necessarily be unfair and whether a permanent stay should be granted. The court had to determine if it was reasonably open for the trial judge to refuse the permanent stay.

The court considered the nature and gravity of the charges, the historical context of the alleged offences, and the potential impact on the fairness of the trial. The court examined whether the passage of time and the unreliability of witnesses, particularly in relation to the young age of the victims at the time of the alleged offences, would necessarily lead to unfairness. The court also considered whether the defendant's substantial delay in bringing the application undermined the argument for a permanent stay. The court found that it was reasonably open for the trial judge to conclude that the application for a permanent stay was not warranted due to the factors mentioned above.

Consequently, the court dismissed the application for review, affirming the County Court judge's decision. The reasoning was that the trial judge had adequately considered the evidence and circumstances and was entitled to the view that a permanent stay was not necessary to ensure a fair trial. The historical nature of the charges, combined with the unreliability of the evidence due to the passage of time, did not necessitate a permanent stay. The applicant's substantial delay in bringing the application further supported the trial judge's decision.

Orders