Director of Public Prosecutions v Ballard (a pseudonym) (Ruling No 2)
[2023] VCC 2369
•18 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01961
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| HAYDEN BALLARD (a pseudonym) | Accused |
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JUDGE: | HIS HONOUR JUDGE ROZEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 November 2023 | |
DATE OF RULING: | 18 December 2023 | |
CASE MAY BE CITED AS: | DPP v Ballard (a pseudonym) (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2369 | |
RULING
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Subject:CRIMINAL LAW – PERMANENT STAY
Catchwords: Application for a permanent stay – Procedural history – Reintroduction of previous acquittals – Forensic disadvantage – Relitigation of first trial – Directions to ensure that an acquittal is not controverted – Retrial not unfair
Legislation Cited: Jury Directions Act 2015 (Vic)
Cases Cited:Dupas v R (2010) 241 CLR 237; R v Glennon (1992) 173 CLR 592; GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; Clark v The Queen (2016) 258 A Crim R 511; Jagov District Court (NSW) (1989) 168 CLR 23; Dyers v The Queen (2002) 210 CLR 285; Fleming v The Queen (1998) 197 CLR 250; Longman v The Queen (1989) 168 CLR 79; Rogers v The Queen (1994) 181 CLR 251; R v Carroll (2002) 194 ALR 1; Garrett v The Queen (1977) 139 CLR 437; R v Young [1998] 1 VR 402; Meyer v The Queen(No 2) [2020] VSCA 206; The Queen v Storey (1978) 140 CLR 364; DPP v Parsons [2020] VCC 1704; Brown v The Queen [2020] VSCA 26; Spies v The Queen (2000) 201 CLR 603; Washer v The Queen (2007) 234 CLR 492; Gilham v The Queen [2012] NSWCCA 131; Garrett v R (1977) 139 CLR 437; R v Storey (1978) 140 CLR 364; Gul v The Queen [2017] VSCA 153; R v VN [2006] VSCA 111
Ruling: Application refused
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Pillai | Office of Public Prosecutions |
| For the Accused | Mr L. Richter & Ms L. Dubroja | Stary Norton Halphen |
HIS HONOUR:
Introduction
1The applicant Hayden Ballard[1] faced two trials in the County Court of Victoria between April and June 2023.[2] In each trial, a jury acquitted him of some charges and convicted him of others. In the first trial, the jury was ultimately discharged without reaching a verdict on two serious charges (charges 10 and 11).
[1] A pseudonym.
[2] Initially the prosecution filed an indictment that contained all of the charges that the applicant ultimately faced. The Court upheld a defence application to sever the indictment in two as part of a ruling in relation to the use of the evidence for tendency purposes.
2He now faces a third trial. The charges on the draft indictment are one charge of conduct endangering persons (Charge 1) and one charge of rape (Charge 2) on draft Indictment No. L11708111D. These charges are identical to charges 10 and 11 that the applicant faced in the first trial. The alleged victim is KA[3]. It is the prosecution of these charges that the applicant now seeks to have permanently stayed.
[3] A pseudonym.
3Such a step by the Court is, of course, draconian. Before considering the merits of the application, it is necessary to traverse the procedural history of the matter, the issues and evidence at the earlier trials, the legal principles concerning stays of criminal proceedings, and the submissions of parties.
Procedural History
4The prosecution filed a 15 charge indictment against the applicant in 2022 (No. L11708111A).
5The prosecution also filed a Notice under s 97(1)(a) of the Evidence Act 2008 (Vic) indicating that it sought to rely on tendency reasoning in its case. In summary, the Notice stated that the prosecution sought to have the evidence relevant to each of the charges considered to be cross admissible; it also sought to rely on a number of uncharged acts.
6The applicant challenged the Notice. On 27 January 2023 I ruled that the prosecution could rely on tendency reasoning but not to the extent it had sought to.
7Subsequently, the prosecution severed the indictment to reflect the ruling about tendency and cross admissibility. As a result, the applicant faced the two trials in 2023 mentioned earlier.
First Trial – Charges, Issues, and Evidence
8The first trial concerned two incidents involving two complainants. The first complainant was KA with whom the applicant was in an intimate relationship at all relevant times. The second was BBW[4], a friend of KA.
[4] A pseudonym.
9Charges 1-5 on the first indictment concerned a series of alleged incidents on 28 August 2016 at a flat where KA was temporarily living as a guest of BBW (the 2016 charges).
10Charge 1 alleged an aggravated burglary at the flat. Charges 2 and 3 were concerned with a confrontation between the applicant and BBW. Charge 4 involved an allegation that the accused had struck KA intentionally causing her injury. Charge 5 was an alternative charge to charge 4 (recklessly causing injury).
11Charges 6-11 concerned a series of incidents said to have occurred in KA’s Seaford residence on 15 May 2018 (the 2018 charges).
12Charge 6 alleged that the accused intentionally caused KA serious injury by punching her to the chest while she was having a shower. Charge 7 alleged in the alternative that the accused recklessly caused her serious injury.
13Charges 8, 9, and 11 each alleged that the accused raped KA on 15 May 2018 at Seaford.
14Charge 8 alleged an oral rape in the bathroom of the complainant’s residence. Charge 9 concerned an alleged vaginal rape also in that bathroom. These two charges will be referred to as the ‘first alleged bathroom rape’ and the ‘second alleged bathroom rape’ respectively in these reasons. Charge 11 alleged a further vaginal rape shortly after the bathroom rapes. This was said to have occurred in the bedroom of the residence. It will be referred to as the ‘alleged bedroom rape’.
15Charge 10 alleged that the accused recklessly placed KA in danger of serious injury by choking her. This is alleged to have occurred in the bedroom at around the time of the alleged bedroom rape.
16At his first trial, the accused pleaded guilty to charge 3 in front of the jury. He also pleaded guilty to charge 5. He denied the other allegations.
17It is unnecessary at this point to say any more about the 2016 charges.
18The central issue at trial in relation to the 2018 charges was whether the jury could be satisfied beyond reasonable doubt that the events alleged occurred.
19The jury’s satisfaction of this rested in large part on its assessment of the credibility and reliability of KA’s evidence. KA was cross examined at length by defence counsel during which her reliability and especially her credibility was rigorously tested. In his closing submissions, counsel for the applicant submitted to the jury that KA is a liar who had given dishonest evidence.
20At the close of the prosecution case, the accused was acquitted of the second alleged bathroom rape charge by direction of the trial judge as the complainant failed to give any evidence relevant to the charge. The prosecution accepted that there was no other evidence upon which the jury could convict the accused of the second alleged bathroom rape.
21The jury returned a verdict of not guilty on charge 6 but guilty to the alternative, charge 7. The jury also returned a verdict of guilty on charge 8 – the first alleged bathroom rape.
22The jury failed to reach verdicts on charges 10 and 11 and was discharged.
Second Trial – Charges, Issues, and Evidence
23On the second trial, the accused faced four charges relating to a series of alleged incidents between September 2019 and July 2020. The charges were stalking (Charge 1); causing injury intentionally in circumstances of gross violence by discharging a gun (Charge 2), in the alternative, causing injury recklessly in circumstances of gross violence (Charge 3); and conduct endangering persons (Charge 4).
24KA was the complainant in relation to charges 1 and 4 and a witness to charges 2 and 3. KA’s new partner, LM[5], was the complainant in relation to charges 2 and 3.
[5] A pseudonym.
25The accused denied the allegations. The central issue in relation to the shooting charges (2-4) was the reliability of KA’s identification of the accused as the shooter. There was also some evidence of identification from LM. The jury’s satisfaction rested on the credibility and reliability of the complainants and especially KA.
26The accused was found guilty of charge 1 (stalking).
27Charges 2, 3 and 4 concerned events alleged to have occurred on the night of 12 July 2020. It was common ground at the trial that on that night a non-fatal shooting incident had occurred outside KA’s residence, where she lived with LM. When the pair confronted a person in the carpark of their apartment block, LM received a gunshot wound to the upper left thigh region. It was alleged that the accused was the shooter. KA gave evidence identifying the accused as the shooter.
28The defence case was entirely focussed on discrediting the evidence of KA, and to a lesser extent that of LM, about identification of the accused as the shooter.
29The jury acquitted the applicant on charges 2, 3, and 4. While the verdicts are inscrutable, I accept that it must be the case that the jury were not satisfied to the requisite standard that it was the applicant who was the shooter.
The Proposed Third Trial
30The proposed third trial concerns the two charges on the first indictment upon which the jury failed to reach verdicts.
31The prosecution has filed a draft indictment No L11708111D. There are two charges on the indictment. A Summary of Prosecution Opening for Trial dated 19 September 2023 (SOPO) outlines the manner in which the prosecution will present its case.
32There is also a fresh tendency notice which has been filed by the prosecution which states the prosecution’s intention to adduce evidence to establish two tendencies of the applicant.[6] The evidence essentially consists of a number of uncharged acts that were the subject of evidence in the applicant’s first trial together with certain findings of guilt by the jury in that trial. No application has been made by defence concerning this Notice.
[6] Notice of Intention to Adduce Tendency Evidence pursuant to Section 97(1)(a) of the Evidence Act 2008 (Vic) dated 4 September 2023.
33In the SOPO, it is alleged that shortly after the second alleged bathroom rape of which the applicant was acquitted (Charge 9 in the first trial), the applicant and the accused were in the bedroom at the Seaford house.
34In brief summary, it is alleged that while in the bedroom, the applicant started to strangle KA whilst calling her “a dog” and telling her she was “a bad dog”. KA was naked at the time. KA pleaded for an ambulance stating, “no, I’ll tell them I fell over, I just need an ambulance”. The accused is said to have stopped strangling her briefly but resumed strangling her a short time later, before both ended up on the mattress on their sides. That is the conduct alleged to constitute charge 1 – Conduct endangering persons.
35While on the mattress the applicant is then alleged to have penetrated KA’s vagina with his penis whilst choking her. That is the conduct alleged to constitute charge 2 – Rape.
36The applicant seeks a permanent stay of the third trial.
Submissions
37The Court has had the considerable benefit of the parties’ written submissions[7] and their oral arguments at the hearing of the application on 8 November 2023.
Applicant
[7] Outline of Submissions in Support of an Application for a Permanent Stay dated 28 September 2023; Outline of Prosecution Submissions in Response to Application for a Permanent Stay dated 1 November 2023.
38The applicant submits that the prosecution of charges 1 and 2 should be permanently stayed. He advances four “primary bases” for this submission:
(a) First, running the trial again will place the accused in an ‘impossible forensic bind’, where he would be compelled to reintroduce the subject matter of his acquittal of the second alleged bathroom rape charge in his defence of charges 1 and 2;
(b) Secondly, running the trial again will place the accused in an impossible forensic bind, where he would need to consider the reintroduction of the subject matter of his acquittal on charges 2-4 in the shooting trial;
(c) Thirdly, a new trial will impermissibly traverse and relitigate the facts and settled verdict of the first trial;
(d) Fourthly, while not specifically invoking the doctrines of autrefois acquit or autrefois convict, a trial of the charges:
(i)Would be oppressive as it involves two trials on the same facts where the preponderance of them have been determined; and
(ii)It would erode public confidence in the justice system by actively fostering a course of action that invites the incompatible determinations of the same facts. [8]
[8] Outline of Submissions in Support of an Application for a Permanent Stayed dated 28 September 2023.
39The applicant modified his argument somewhat during oral argument on 8 November 2023. Ultimately, Mr Richter combined (a) and (b) and characterised (c) and (d) as an argument that a third trial would bring the administration of criminal justice into disrepute.[9]
[9] Transcript of Proceedings, DPP v Ballard (County Court of Victoria, CR-21-01961, Judge Rozen, 8 November 2023) 9 [6-22].
40Based on the oral argument, it is apparent that the principal ground is the first. The applicant’s argument may be summarised thus. To challenge the charges in the third trial, he will need to attack the credibility and reliability of the complainant. During the first trial, one of his strongest challenges to KA’s credibility was her failure to give any evidence about the second alleged bathroom rape despite the prosecutor having opened that she would give that evidence.
41This was a course that could be pursued in the first trial because the charge was on the indictment. However, the position in the third trial will necessarily be very different. Based on the SOPO, the prosecution opening will make no reference to the second alleged bathroom rape. It will be for the applicant to raise the issue thus potentially calling into question his acquittal as it may be expected that KA, if she is referred to her failure to give evidence about that allegation during the first trial, will tell the jury that the rape in fact occurred. If the applicant’s counsel decides this risk is too great, the applicant will be deprived of that forensic advantage that he had in the earlier trial. That, in summary, is the forensic bind.
42The term “forensic bind” does not appear in the authorities to which reference will be made below but I take it to mean an accused facing what may be colloquially described as Hobson’s choice. In other words, the absence of a real choice – both options are problematic for his defence albeit for different reasons. The applicant submits that it would be ‘unfair and unjustifiably oppressive to put [him] in that forensic situation’.[10]
[10] Transcript of Proceedings, DPP v Ballard (County Court of Victoria, CR-21-01961, Judge Rozen, 8 November 2023) 8 [19-20].
43A similar issue arises in relation to the applicant’s argument concerning his acquittals in the second trial. However, there the position is more complicated. The jury verdict is of course inscrutable. However, it is entirely possible that the verdict had little to do with KA’s credibility and much to do with the concerns about the reliability of identification evidence. The jury were directed about such concerns in clear terms.[11]
[11] See Jury Directions Act 2015 (Vic), s 36.
44The applicant’s final argument is that although he only faces 2 of the 11 charges that were on the indictment for the first trial, he will be forced to relitigate almost the whole of the trial due to the breadth of the case the prosecution intends to prosecute.
Prosecution
45The prosecution opposes the application and submits that the retrial of the accused should proceed.[12]
[12] Outline of Prosecution Submissions in Response to Application for a Permanent Stay dated 1 November 2023.
46With respect to the first two bases, collectively, the “forensic bind” bases, the prosecution submit that the submission is founded on the assumption that the complainant, KA, will be recalled. The complaints made of forensic disadvantage flow from the decision to recall the complainant, noting that this is not a course proposed by the prosecution.
47Furthermore, evidence of the acquittal is prima facie favourable to the accused as it may serve to undermine the credibility and/or reliability of the complainant, particularly in light of it now being open to the defence to pursue the motive to lie based on the evidence of the complainant in the second trial.
48The prosecution submits that to call KA again, instead of relying on an edited version of her evidence at the first trial, would constitute a forensic decision by the defence, that is, a discretionary decision as opposed to an imperative.
49In meeting the third and fourth bases advanced by the applicant in his written submissions, the prosecution submits that a new trial will not relitigate the facts and settled verdict of the previous rape trial and it is speculative to suggest the previous jury might have come to a starkly and problematically different conclusion on the same facts. This is particularly so in circumstances where the jury had reached a stalemate. The prosecution submits that the situation is broadly analogous to a retrial following a “hung jury”. The complicating factor, as addressed above, is the introduction of the acquittal on the rape charge immediately preceding charge 2, which would be a forensic decision made by the accused.
50It is convenient at this point to summarise the applicable legal principles to applications to permanently stay a criminal trial.
Legal Principles
Permanent Stays Generally
51The principles are well-established.
52A court may only grant a permanent stay in an "extreme case" where there is "a fundamental defect that goes to the root of the trial 'of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences'”.[13] The High Court in Dupas observed that to characterise a case as ‘extreme’ 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 …, 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”[14]
[13] Dupas v R (2010) 241 CLR 237 (‘Dupas’); R v Glennon (1992) 173 CLR 592.
[14] Dupas (n 12) 250 [35] (citations omitted).
53The gravity of such an order was recently articulated by the High Court, albeit in a civil context, in GLJ[15]:
… the grant of a permanent stay to prevent an abuse of process involves an ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system. That ultimate decision must be one of last resort on the basis that no other option is available.[16]
[15] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 (‘GLJ’).
[16] Ibid, [3].
54The power to grant a permanent stay emerges from the court’s inherent power to protect the integrity of its processes where the administration of justice so requires.[17] An applicant for a stay must establish that to continue a prosecution would – not could – involve unacceptable injustice or unfairness and be so unfairly and unjustifiably oppressive as to constitute an abuse of process.[18]
[17] Clark v The Queen (2016) 258 A Crim R 511, 514 [13] (‘Clark’).
[18] Ibid, 514 [15].
55The categories of case in which a court should exercise the power are not closed; the power is available whenever it would be unfair to the accused to permit the prosecution to proceed.[19]
[19] Jagov District Court (NSW) (1989) 168 CLR 23, 53 (‘Jago’).
56The determination of an application should not be understood as involving a subjective balancing exercise involving consideration of a variety of factors and considerations. This approach, the High Court warns, tends to distract attention from the “real issue” – the congruence or otherwise of the holding of a trial and rendering of a verdict with the fundamental norms underlying our legal system – and impermissibly refocuses attention on considerations personal to the parties.[20]
[20] GLJ (n 14) [22].
57What is a ‘fair trial’ must also be properly understood. The task of the courts is not to ensure a perfect trial:
By the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness. The judge's responsibilities are heavy but they are not discharged by abdication of the court's duty to try the case. 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.[21]
[21] Jago (n 18) 49.
58If a trial will necessarily be unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process, a court must not permit the trial to be held. If, on the other hand, a fair trial can be held and will constitute an abuse of process, a court ordinarily has a duty to hear and decide the case.
59Two final matters of principle are worthy of note.
60First, the Director has here made the decision to place the applicant on trial in respect of the two outstanding charges. It will be his third trial in this court arising from charges involving the complainant KA.
61It is well established that a court will be slow to second guess a prosecutor’s decision to place an accused person on trial in respect of serious criminal charges. Save in exceptional cases, a court will ordinarily leave a decision about whether a retrial should take place to ‘the prosecutor in the Executive Government’.[22]
[22] Dyers v The Queen (2002) 210 CLR 285, [85] (Kirby J); Fleming v The Queen (1998) 197 CLR 250, [47]; Longman v The Queen (1989) 168 CLR 79, 109 (McHugh J).
62Secondly, It is a fundamental principle of the law that decisions of courts, unless set aside or quashed, must be accepted as incontrovertibly correct.[23] In particular, an acquittal ‘may not be questioned or called into question by any evidence which, if accepted, would overturn or tend to overturn the verdict’.[24] As Gleeson CJ and Hayne J recognised in the case of Carroll,[25] ‘reference to calling in question and tending to overturn give the principle great width’.[26]
[23] Rogers v The Queen (1994) 181 CLR 251, 273; R v Carroll (2002) 194 ALR 1, [35] (‘Carroll’).
[24] Garrett v The Queen (1977) 139 CLR 437, 445 (Barwick CJ with whom Stephen, Mason and Jacobs JJ agreed) (‘Garrett’).
[25] Carroll (n 22).
[26] Ibid, [37].
63The principle is primarily concerned with preventing the prosecution from adducing evidence at a subsequent trial that may have the identified effects.[27] As Gleeson CJ and Hayne J observed in Carroll, the principle ‘has not been held to preclude persons other than the prosecution asserting in later proceedings that the person committed the crime of which he or she was acquitted at trial’.[28] Nor does it necessarily prevent the tender of evidence which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision’.[29] Any such evidence must of course be relevant and admissible in the subsequent trial.[30]
[27] R v Young [1998] 1 VR 402, 423.
[28] Carroll (n 22) [45].
[29] Ibid, [50].
[30] Meyer v The Queen(No 2) [2020] VSCA 206, [39] (‘Meyer’).
64Crucially, in such a case, a jury must be ‘duly warned that they must accept the fact of the earlier acquittal and not use the evidence in any wise to reconsider the guilt of the accused of the earlier offence or to question or discount the effect of the acquittal’.[31]
[31] The Queen v Storey (1978) 140 CLR 364, 372 (Barwick CJ who dissented as to the result but whose statement of principle has subsequently been endorsed in the High Court – see, eg, Carroll (n 23) [137] (McHugh J).
Consideration
65Consistent with the authorities outlined above, I consider that if I find that the retrial of the accused on the two outstanding charges would be unfair, notwithstanding the flexible use of powers and processes vested in the Court, this would compel the ordering of a permanent stay. If on the other hand, I find that the trial can proceed fairly, the Court is required to allow it to proceed.
66I will now turn to consider the bases for the application in turn, concentrating on the “forensic bind” basis as it was this ground that was the subject of most of the argument.
“Forensic Bind”
67As noted earlier, the prosecution does not intend to call KA as a witness at the third trial. She will therefore only give evidence beyond the evidence recorded at the first trial if the applicant wants her to. During oral argument I canvassed with the parties whether the evidence of the acquittal could be given in an agreed form by the informant. Mr Richter said he would need to think about this option; Ms Pillai accepted this could be done. Without expressing a concluded view, this is an example of the flexible conduct of the trial which may address unfairness.
68Counsel for Mr Ballard placed reliance on the case of DPP v Parsons,[32] in which her Honour Judge Riddell permanently stayed a criminal prosecution. While acknowledging that a decision of another Judge of the County Court is not binding on the Court, Mr Richter submitted that the circumstances before the Court in Parsons were ‘strikingly similar’ to those in the present case and involved an application of the approach endorsed by the Court of Appeal in Brown v The Queen.[33] It is therefore necessary to consider Brown before examining the decision of Parsons.
[32] [2020] VCC 1704 (‘Parsons’).
[33] [2020] VSCA 26 (‘Brown’).
69Brown was an appeal against conviction of a charge of recklessly causing injury. The accused had been fined $4,000 by the sentencing judge. The accused had been acquitted of four other charges including two that related to an earlier alleged incident and one relating to an allegation that he had thrown the complainant into a ‘tub’ chair. The complainant in respect of all five charges was the de facto partner of the accused.
70The Court of Appeal upheld the appeal against conviction and considered whether to order a re-trial. The Court was required to determine whether it was in the interests of justice to order a re-trial or to enter an acquittal.[34]
[34] See Spies v The Queen (2000) 201 CLR 603, [104].
71The Court entered a judgment of acquittal based in large part on the ‘significant forensic challenges’ that would be faced by the accused at any re-trial.[35] Those challenges would arise, in view of the Court as a result of the manner in which the first trial took place. The complainant’s credibility was the central question and the Court of Appeal considered that the acquittal on the remaining charges on the indictment suggested that the accused had been ‘partially successful’ in undermining her credibility by drawing the jury’s attention to inconsistencies in her account. Turing to the re-trial, the Court considered that:
the assessment of the complainant’s credibility would again be a central factor. The [accused] would be placed in a very difficult position. He could expose inconsistencies or infirmities in the complainant’s account in relation to the first incident, and the allegation concerning the tub chair, but only by putting facts surrounding those matters before the jury[36]
[35] Brown (n 32) [28].
[36] Ibid, [33] (emphasis added).
72While the prosecution would be prevented, without agreement of defence, from adducing evidence of the tub chair incident because of the acquittal, the accused would be placed in the ‘invidious position’ of using the complainant’s account as evidence of her exaggeration ‘but only at the expense of adducing evidence of another alleged assault in respect of which the jury had acquitted him’.
73The Court of Appeal considered that this difficulty and that the jury ‘might also be tempted to speculate that perhaps the [accused] had been previously found guilty of charge 4’[37] were relevant to the question of where the interests of justice lay.
[37] Ibid, [35].
74It is important to note that, in ordering an acquittal the Court of Appeal in Brown was influenced by two further factors:
(a) That the Crown case on charge 4 was not a strong one particularly in light of the new evidence that had led to the appeal being upheld;[38] and
(b) The punishment imposed by the sentencing judge (a fine of $4,000) indicated that the alleged conduct was ‘at the lower end of seriousness for an offence of this kind’.[39]
[38] Brown (n 32) [27].
[39] Ibid, [26].
75By contrast, in the present case the allegations are of a particularly violent rape in a domestic setting. The accused will fall to be sentenced under the standard sentence regime and any sentence would be expected to be significant. I acknowledge in this regard that the applicant is already to be sentenced on a number of charges including a rape.
76Further, in my view, the Crown case cannot be characterised as weak especially in light of the first jury’s verdict of guilty on the charge concerning the first bathroom rape.
77The Court in Brown was also concerned that ‘directions [to the jury] concerning the use of the acquittal would be complex’. Their Honours referred in this regard to the cases of Washer v The Queen[40] and Gilham v The Queen.[41] It is necessary to refer briefly to these cases.
[40] (2007) 234 CLR 492 (‘Washer’).
[41] [2012] NSWCCA 131, [649] (‘Gilham’).
78In Washer, the High Court by majority held that, in a trial for drug trafficking, evidence that the accused had been acquitted at an earlier trial of drug trafficking on another occasion was irrelevant. Citing the cases of Garrett v R[42] and R v Storey,[43] the plurality accepted that evidence of an earlier acquittal may ‘be admitted if it is otherwise relevant and if the jury can be and is directed not to interpret it in such a way as to deny the acquittal’.[44]
[42] (1977) 139 CLR 437.
[43] (1978) 140 CLR 364.
[44] Washer (n 39) [32]; see also [42].
79In the second case, the Court of Criminal Appeal of New South Wales, having upheld an appeal against conviction, refused by majority, to order a re-trial. However, the reason why the majority considered that a retrial was not in the interests of justice turned on their criticisms of the Crown’s conduct of the trial and not on the difficulties associated with any jury directions.[45]
[45] Gilham (n 40) [662]-[676] (Fullerton J) and [677]-[702] (Garling J).
80It is not immediately apparent that the two cited decisions are relevant to the question of jury directions in such cases.
Parsons
81As noted, the principles in Brown were recently applied in a detailed ruling in the case of Parsons by her Honour Judge Riddell of this Court. Mr Ballard placed particular reliance on her Honour’s ruling while recognising that it does not bind me.
82Because the facts of the case bear some resemblance to the present matter, it is necessary to examine the case and her Honour’s ruling in some detail.
83The accused in Parsons was tried by a jury on six charges of sexual offending against a single complainant who was his granddaughter. The jury returned verdicts of not guilty on charges 2-6 but failed to reach a verdict on charge 1. The prosecution sought to retry the accused on charge 1 while excising any reference to the evidence founding charges 2-6. The central issue at trial was the credibility and reliability of the complainant as a witness.
84In applying for a permanent stay of charge 1, counsel for the accused submitted that any retrial would offend the principle of incontrovertibility and would relitigate the same series of events.
85Her Honour granted a permanent stay. Central to her Honour’s ruling was the nature of the charge which was to be the subject of the re-trial. Charge 1 charged a course of conduct offence over a period of time that included the dates of the specific date offences (charges 2-6) which had been the subject of the acquittals at the first trial. In those circumstances, her Honour accepted the defence submission ‘that in order to properly defend the accused they must seek to reintroduce the evidence regarding Charges 2-6 by cross-examining the complainant on those matters’.[46] It was in those circumstances, that her Honour accepted that once introduced, such evidence ‘… will tend to undermine the acquittals’.[47] It was for this reason that the defence ‘choice’ was characterised by the Court as ‘Hobson’s choice’.[48]
[46] Parsons (n 31) [76].
[47] Ibid, [77].
[48] Ibid, [72].
86In my view, while at first blush Parsons and the applicant’s case appear similar, the present case is quite different. There are several important distinguishing features.
87First, there is no suggestion of the cross examination of KA at the proposed third trial ‘re-introducing the evidence’ regarding the alleged second bathroom rape This is because, unlike the position in Parsons where the complainant gave extensive evidence about charges 2-6 and was cross-examined about that evidence during the first trial, KA gave no relevant evidence concerning this charge during the first trial. That was why there was a directed acquittal.
88Secondly, the prosecution in Parsons proposed to run a second trial limited to the allegations that gave rise to charge 1. There was to be no evidence led about charges 2-6. The prosecution contended that any such evidence would be inadmissible as being irrelevant to the jury’s consideration of charge 1. Here, by contrast, the prosecution is proposing to lead in recorded form all of the evidence that was led in the first trial (with edits to be agreed) and accepts that evidence about the credibility of the complainant is clearly relevant.
89Thirdly, the acquittal of the accused in Parsons on charges 2-6 necessarily meant that the first jury had formed a negative view about the credibility of the complainant. That was because, as her Honour noted, the credibility of the complainant was central.[49]
[49] Parsons (n 31) [56].
90Here, on the other hand, while KA’s credibility was also central in the first trial of Mr Ballard, the first jury must be taken to have accepted her evidence about the first alleged bathroom rape and the punch to the ribs as both credible and reliable. It is significant that the allegations underlying these charges are said by the prosecution to have occurred very close in time to the alleged conduct underlying the proposed third trial.
91Unlike the situation in Parsons, the acquittal on the second alleged bathroom rape did not involve the jury rejecting the complainant’s evidence. It was instead a function of the jury following my direction.
92Fourthly, the fact that charge 1 in Parsons was a course of conduct charge while charges 2-6 alleged specific events meant, as her Honour concluded, that forensically, it was easier for counsel for the accused to challenge the complainant’s credibility in respect of the specific charges than in respect of charge 1.[50] The challenge made to the complainant’s credibility was more powerful in respect of charges 2-6 because of the ‘significant inconsistencies’ in her evidence concerning those charges.[51]
[50] Ibid, [73]-[76].
[51] Ibid, [104].
93As her Honour observed, ‘the cross-examination of the complainant at trial focussed largely on the evidence concerning Charges 2-6’.[52] There were numerous inconsistencies revealed by that cross examination.[53] Forensically, it was more difficult for the complainant’s evidence to be undermined in respect of the course of conduct charge alone.[54]
[52] Ibid, [73].
[53] They are summarised Parsons (n 32) [38]-[51].
[54] Ibid, [74].
94At the retrial, it would be expected that defence counsel would seek to take the same approach that had borne fruit in the first trial. However, in so doing, the probability would be that the complainant would maintain the allegations that had been rejected by the first jury by giving evidence that the events had in fact occurred. If that evidence was accepted, it would ‘tend to overturn’ and ‘inevitably challenge’ the acquittals.[55] Her Honour understandably considered that the risk of unfair prejudice occasioned by this was real.
[55] See Garrett (n 23) 445 (Barwick CJ with whom Stephen, Mason and Jacobs JJ agreed).
95Finally, the problem was confounded in her Honour’s view by the nature of the specific allegation founding charges 2-6 which was that the accused had used a pair of pliers to hold open the vagina of his very young granddaughter. As her Honour observed, to properly defend his client, defence counsel would ‘be forced to reintroduce allegations which are more serious and disturbing’ than those giving rise to the charge he was facing.[56] This relativity of seriousness as between the charged and uncharged acts was clearly significant.
[56] Parsons (n 31) [100].
96Here by contrast, in the first trial, despite challenges to her credibility which took several days of court time, there was no cross examination of KA about the second alleged bathroom rape. For good reason, defence counsel left the topic alone after KA failed to give any evidence at all about it in her evidence in chief. Unlike Parsons, there will be no need in this case for defence counsel to ‘reintroduce the evidence’ regarding the charge on which the applicant was acquitted.
97The forensic point that the applicant’s counsel may seek to make at the third trial is more circumscribed and discrete. It is essentially the point made by Mr Richter to the jury in his address to them at the conclusion of trial one which was that KA was not a credible witness as evidenced by her failure to give evidence about one of the rapes alleged against Mr Ballard. The only difference is that in the proposed third trial, there will be no prosecution opening to contrast the absence of evidence with. But that is a far cry from the position the accused found himself in in Parsons.
Relitigating the First Trial
98The second limb of the application for a stay concerns what is characterised as the oppression and unfairness of having to relitigate the breadth of evidence led in the first trial.
99The short answer to this in my view is that it is a relatively common feature of retrials when a jury is unable to reach a verdict. That is especially so in a case such as the present where the prosecution relies on a large number of uncharged acts as part of its tendency case.
100While it is unfortunate that much of the evidence will need to be re-visited I do not consider that this rises to the level of unfairness and oppression that would require a permanent stay.
101In this regard, I noted earlier that there is a strong public interest in the prosecution of serious crimes of which charges 1 and 2 are clearly examples. The Court of Appeal emphasised in the case of Brown that this is especially so in cases of charges ‘arising from allegations of domestic violence’[57] of which the present case is an example.
[57] Brown (n 32) [25].
Conclusions
The Application is Rejected
102I consider that the present case is somewhat similar to that of R v Storey[58] in which a majority in the High Court allowed a complainant to give evidence that called into question an earlier acquittal provided the evidence was accompanied by an appropriate warning to the jury about the limited use of the evidence (which was to assess the credibility of the complainant). As Mason J explained, the adoption of that course will ‘in all probability advantage the accused because it tends to suggest that the testimony of the witness to the extent to which it was relied upon by the Crown to support an earlier charge may have been found to be unacceptable’.[59]
[58] Storey (n 42).
[59] Ibid, 397.
103I consider that to be the likely effect of the impugned evidence in the third trial. If evidence about the acquittal on the second alleged bathroom rape is adduced, the jury will learn that the applicant was acquitted of a charge of rape against the same complainant at a time close to the time of the allegations that found the two charges before them. They will receive a direction from me as to how they can use that evidence.
104While it is possible that, as submitted by Mr Richter, the jury may speculate that the accused’s acquittal was because of some ‘technical’ flaw in the prosecution case, I consider the more likely outcome to be the one described by Mason J in Storey which can only benefit the accused. Further, the possibility of such speculation may be guarded against by an appropriate direction from the trial judge.
105It is necessary finally to address what those directions may consist of.
Directions to Ensure that an Acquittal is Not Controverted
106In his written submissions in support of a stay, the applicant submitted that at a retrial, ‘no evidentiary ruling or direction of law or even an appropriate comment could restore to the accused the benefit of the acquittal to which he is entitled’.[60]
[60] Outline of Submissions in Support of an Application for a Permanent Stayed dated 28 September 2023, [21].
107It will be recalled that the Court of Appeal refused to order a re-trial in Brown partly because ‘directions concerning the use of the acquittal would be complex’.[61] Judge Riddell was similarly concerned in Parsons about the complexity of the directions that would be required.[62]
[61] Brown (n 32) [34].
[62] Parsons (n 31) [102].
108Without formulating any such direction in advance of the trial, it is necessary to consider what directions could be given at any retrial of Mr Ballard on this question.
109In Washer,[63] the plurality judgment provided some guidance concerning an appropriate direction for a jury to be given concerning an earlier acquittal on a charge of being a party with two men called Whitsed and Bowles to an agreement to supply drugs that was relevant to a subsequent criminal trial concerning a different allegation in Queensland of the same type of offending. Their Honours considered that the jury should be directed:
… that the [accused] had been charged previously with being a party to an agreement (not related to the Queensland importation) with Whitsed and Bowles, that he had been acquitted, and that the jury must therefore act on the basis that there was no agreement to supply between those three men[64]
[63] Washer (n 39).
[64] Ibid, [41].
110The plurality considered ‘that would have been a complete statement of what was involved in the benefit of the acquittal’.[65]
[65] Washer (n 39) [41].
111Similarly, in the case of Meyer,[66] while upholding the trial judge’s exclusion of evidence of an earlier acquittal, the Court of Appeal held that, where such evidence is admissible, a judge may have to tell the jury that the accused ‘had been acquitted of charges in relation to these incidents and that, while those acquittals were not evidence relating to any fact in issue, they could not be called into question and the applicant was entitled to the full benefit of them’.[67]
[66] Meyer (n 29).
[67] Ibid, [43].
112To similar effect, in the case of Gul v The Queen,[68] Croucher AJA considered that in such a case, a jury ‘would have to be warned against impermissible use of the evidence that has been led on those counts [in respect of which there were acquittals] and directed as to any limited use that can thereafter be made of such evidence’.[69]
[68] [2017] VSCA 153.
[69] Ibid, [152]. See also R v VN [2006] VSCA 111, [79] (Redlich JA).
113In the event that counsel for Mr Ballard adduces evidence of his client’s acquittal of the second bathroom rape at the re-trial (a course of action that will only occur at his initiative), these authorities would in my view be an appropriate starting point for a discussion with counsel about the formulation of an appropriate direction to the jury. The final wording would of course have to reflect the way the evidence came out, the submissions of the prosecution and the accused and especially the way in which the prosecution and the accused have put their cases in respect of the issue.[70]
[70] Jury Directions Act 2015 (Vic), s 66(1) and (2)(a), (e), (f).
114While I do not understate the difficulty of tailoring an appropriate set of directions in this case, such difficulties are not unknown in criminal trials in this Court especially concerning the use of tendency evidence.
115For the reasons stated above, I refuse the application for a permanent stay. Mr Ballard should face trial on the two remaining charges at the earliest available date given that he has not yet been sentenced on the earlier charges of which he has been found guilty.
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