Chris Bradley (a pseudonym)[1] v The Queen

Case •

[2017] VSCA 332

•

15 November 2017

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:

  1. 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.

  1. 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.

  1. 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 16 years contrary to s 48(1) of the Crimes Act 1958) and charges 14–17 (all being carnal knowledge of an ‘unmarried female’ of or above the age of 16 years and under the age of 18 years contrary to s 50(1) of the same Act).

  1. The particular charges in relation to which a permanent stay was sought were charges 14-17, all concerning CJ.

  1. At the time of the commission of these alleged offences, the offence of carnal knowledge of a girl of or above the age of 10 years and under the age of 16 years was contained in s 48 of the Crimes Act 1958. The section, in its then form, provided:

48(1)       Whoever unlawfully and carnally knows any girl of or above the age of ten and under the age of sixteen years shall be guilty of a felony, and shall be liable to imprisonment for a term of not more than ten years; but if he is a schoolmaster or teacher, and such girl is his pupil, he shall be liable to imprisonment for a term of not more than fifteen years. 

  1. Where the alleged victim was an ‘unmarried female’ of or above the age of 16 and under the age of 18, the relevant offence was contained in s 50(1), which was at that time in the following form:

50(1)       If any person of or above the age of twenty-one years unlawfully and carnally knows any unmarried female of or above the age of sixteen and under the age of eighteen years he shall be guilty of an indictable offence and shall be liable to imprisonment for a term of not more than twelve months.

(2)       It shall be no defence to any charge for an offence under this section that such carnal knowledge was with the consent of such female.

(3)       In this section the expression ‘female’ does not include a female who with her consent has previously had intercourse with a male person other than the accused.

  1. The offence under s 50 was, at that time, subject to a 12 month limitation period.[2] However, in 2014 that limitation period was abolished.[3] Accordingly, there is no longer any time bar preventing charges 14–17 from proceeding.

    [2]Section 51 of the Crimes Act1958 relevantly provided that no prosecution, under s 50, for an offence against a female of or above the age of 16 and under the age of 18, could be commenced more than 12 months after its commission.

    [3]Crimes Amendment (Sexual Offences and Other Matters) Act 2014 s 10 (inserting a new s 7A into the Criminal Procedure Act 2009).

Background facts

  1. During the period between 1969 and 1973, the applicant was a teacher at the school attended by all three complainants. The Prosecution Opening, prepared for the trial, suggests that he was thought of as a ‘handsome and popular teacher’. There were frequent occasions when teachers and students would socialise together. On some of these occasions, they would meet at the applicant’s house. Alcohol would be consumed.

  1. In 1969, CJ commenced Form 1 at the school. The applicant was her maths teacher in either Form 2 or Form 3. In 1972, when she was in Form 4 and aged 15, she accompanied him one night to his house. There he had sexual intercourse with her. This gave rise to charge 9, carnal knowledge of a girl of or above the age of 10 years and under the age of 16 years. CJ claims that this was the first time she had ever had intercourse. 

  1. There were further acts of sexual intercourse between the applicant and CJ when she was aged 15. These gave rise to charges 10, 11, 12 and 13.

  1. After CJ turned 16, she continued to engage in acts of sexual intercourse with the applicant. Because by this stage she had turned 16, these are all charged as carnal knowledge of an ‘unmarried female’ of or above the age of 16 and under the age of 18.  

  1. The Crown has foreshadowed that CJ will give evidence in the trial that the applicant was the only person with whom she had ever had sexual intercourse until she reached the age of 22.

The applicant’s submissions

  1. There were originally two proposed grounds of appeal. They were as follows:  

(a) The learned trial judge erred in finding that charges 14–17 were not foredoomed to fail; and

(b) The learned trial judge erred in finding that proceeding upon each of the above charges against the accused was not an abuse of process.

  1. In the course of oral submissions, senior counsel for the applicant specifically abandoned proposed ground (a). It is therefore unnecessary to say anything further about that matter. 

  1. As regards proposed ground (b), senior counsel submitted that the applicant faces an inherently unfair trial if charges 14–17 are permitted to stand. That is because the Crown’s entire case, regarding those charges, was put on the basis that the applicant was the only person CJ had ever had intercourse with until she was aged 22. In effect, it was submitted that made her ‘virginity’ at the time she had intercourse with the applicant an element of those charges. It was submitted that this ‘element’ could not be fairly tested given that CJ’s claim to have not had sexual intercourse with anyone other than the applicant was being made more than 40 years after the relevant event.

  1. The applicant noted that in support of charges 14–17 the Crown had filed an application under s 342 of the Criminal Procedure Act 2009 by which it sought leave to enable CJ to give that evidence.

  1. The applicant submitted that there was something unfair about the Crown being granted leave to lead evidence of CJ’s ‘sexual activities’ (or rather, her lack of any such activities with persons other than the applicant until she was 22). By way of contrast, s 341 of the Criminal Procedure Act2009 would preclude the applicant from questioning CJ, or leading evidence of her ‘general reputation … with respect to chastity’, a line of defence that might render her evidence on this point doubtful. The applicant noted that s 341 contains a blanket prohibition and, unlike s 342, makes no provision for leave to be sought or granted to enable evidence of that kind to be led.

  1. The applicant drew upon the definition of ‘chastity’ in the Oxford Dictionary as ‘the state or practice of refraining from extramarital or especially from all, sexual intercourse’. The applicant submitted that ss 341 and 342 of the Criminal Procedure Act 2009 are in direct conflict with s 50 of the Crimes Act 1958.

  1. It was further submitted, on behalf of the applicant, that s 50 had the effect of raising the age of consent from 16 to 18, itself a proposition of dubious validity. The section was said to be based upon the now recognisably unwarranted assumption that unmarried females aged between 16 and 18 are ordinarily ‘virginal’. The applicant asked rhetorically, ‘… should a jury in 2017 be asked to adjudicate upon such outdated notions?’.

  1. The applicant describes the offence contained in s 50 as an ‘anomaly’. In his submission, that means that this Court should be more readily prepared to exercise the exceptional power to stay the charges brought under that section.

The respondent’s submissions

  1. The Crown submitted below, and again before this Court, that the proposed ground of appeal did not have merit.

  1. It was first submitted that the Crown’s application under s 342 for leave to adduce evidence of CJ’s prior sexual activity (other than with the applicant), was limited to establishing a critical element of the offence in s 50. The Crown had to prove that the only person with whom CJ had had sexual intercourse prior to the events giving rise to charges 14–17, was the applicant himself.

  1. It was submitted that there would be nothing to prevent the applicant from challenging that evidence by establishing that before he had sexual intercourse with CJ after she turned 16, she had in fact had sexual intercourse with one or more persons other than the applicant. All that s 341 would prevent the applicant from doing, would be leading evidence of CJ’s ‘reputation ... with respect to chastity’.

  1. The Crown submitted that, even if the lapse of more than 40 years between the commission of these alleged offences and the present day gave rise to some disadvantage, so far as the applicant was concerned, this could be ameliorated by a strongly worded forensic disadvantage warning.

  1. The Crown accepted that there might be some force in the criticism levelled at the archaic tone embodied in s 50. It acknowledged that the section, as it then stood, entailed ‘outdated notions in regards to female virtue’. Nonetheless, it was submitted that Parliament had seen fit, as recently as 2014, to lift the time bar on charges under that very section. Had the legislature taken the view that s 50 was outmoded and reflected obsolete values, it could have excluded that section from the relevant provisions of the 2014 amending Act.

Conclusion

  1. It was properly acknowledged, on behalf of the applicant, that the grant of a permanent stay is a power to be exercised sparingly and only in extreme circumstances.[4] Nonetheless, it was submitted that this was such a case.

    [4]Bauer (a pseudonym) v R (No 1) (2015) 46 VR 382.

  1. We are not persuaded by that submission.

  1. Merely because there has been a delay of many years between the alleged commission of these offences and the bringing of these charges, making it more difficult for the applicant to challenge CJ’s evidence regarding her ‘sexual activities’, it does not follow that a fair trial cannot be had regarding that issue. The fact that s 341 of the Criminal Procedure Act 2009 precludes the applicant from leading evidence as to the complainant’s ‘reputation … with respect to chastity’, does not mean that he cannot receive a fair trial.   

  1. In our view, the judge was correct in refusing to certify. His Honour applied the appropriate legal principles which govern the exercise of the power to grant a permanent stay.  

  1. We have noted what the applicant has had to say about the public interest in pursuing charges of this kind, particularly after a delay of this length. We have some sympathy with the applicant’s contention that some of the concepts built into s 50 are outmoded, and plainly unsuited to modern circumstances.

  1. Nonetheless, matters such as these are primarily questions for the legislature, as well as the relevant prosecuting authority. Moreover, they do not even remotely come within the proposed ground of appeal.

  1. The application to review the decision refusing certification is dismissed.

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