Director of Public Prosecutions v Colonomos (a Pseudonym)
[2019] VCC 795
•18 March 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VASILIS COLONOMOS |
---
| JUDGE: | HER HONOUR JUDGE RIDDELL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 March 2019 |
| DATE OF RULING: | 18 March 2019 |
| CASE MAY BE CITED AS: | DPP v Colonomos (a Pseudonym)[1] |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 795 |
[1] Names and addresses have been anonymised to protect the identity of the complainant, the accused and the deceased witness in this matter.
REASONS FOR RULING
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Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Albert | |
| For the Accused | Mr P.S Tiwana |
1Vasilis Colonomos[2] was born on New Year's Day 1935. He is now 84 years of age.
[2] Pseudonym used
2He and his wife Nicole[3] lived at 17 Latrobe Street, Brunswick,[4] during the 1980s. They were part of St Basil's Greek Orthodox Church Community in Brunswick. In that context, they met Kaitlin Stephanidis.[5]
[3] Pseudonym used
[4] Address anonymised
[5] Pseudonym used
3Ms Stephanidis is the mother of Paula[6] and Gregory Michelakis[7]. Paula is the complainant.
[6] Pseudonym used
[7] Pseudonym used
4Paula was born on 17 August 1978 and is now 40 years of age. Her brother Gregory is two years her junior, born 2 September 1980. Paula was born with cerebral-palsy which affected her mobility to an extent.
5In approximately 1981 the accused and his wife were nominated to be Gregory Michelakis' godparents. As a result of that relationship Paula and Gregory regularly attended the home of the accused and his wife, sometimes remaining there overnight.
6Paula alleges that on regular occasions between September 1985 and August 1990, when she was aged between seven and 11, the accused regularly sexually abused her at his residence.
7The accused is charged with three charges namely Charge 1, indecent assault by way of digital penetration; Charge 2, indecent assault by way of oral penetration; and Charge 3, attempted sexual penetration of a child under ten years, namely by attempting to introduce his penis into her vagina. Each charge is a course of conduct charge and is framed between the dates of 2 September 1985 and 16 or 17 August 1990.
8The complainant reported these matters to police in mid-2016 and made a 12 page statement dated 6 August 2016.
9The accused was arrested and interviewed on 23 November 2016. He participated in a record of interview and denied all allegations.
10The facts in issue at trial will be whether the prosecution can prove beyond reasonable doubt that the alleged events the subject of the charges occurred.
11At the time of the arrest and interview of the accused, his wife Nicole was terminally unwell. Her son Alexander Kokinos[8] declined a request by police to take a statement from her. Nicole Colonomos passed away on 4 March 2017.
[8] Pseudonym used
12The accused now makes application for a permanent stay of these proceedings. The basis of that application is that any trial would result in unacceptable unfairness to the accused and that such unfairness would be of such a nature that it could not be cured. In large part the application rests on the death and unavailability of Nicole Colonomos.
13The application is opposed by the prosecution.
14The issue therefore is whether I should exercise my discretion to grant that application.
Background
15By way of background Ms Kaitlin Stephanidis was married to Nicomedes Michelakis.[9] He is the father of the complainant and Gregory.
[9] Pseudonym used
16The relationship between Ms Stephanidis and Mr Michelakis was dysfunctional. He was in and out of her life, and the life of their children. Ms Stephanidis regularly visited the house of the accused and his wife, and regularly left the complainant and her brother at their home, sometimes overnight.
17The house at 17 Latrobe Street, Brunswick, was a very small, single-storey terrace in a row of similar terraces, and adjoined on either side. A long corridor ran from the front door towards the rear of the house, passing two bedrooms and a smaller room before coming to the lounge at the end of the corridor. Immediately off the lounge was the kitchen, with the door to the rear yard. In the rear yard was a shed.
18The accused and his wife occupied the first bedroom; Nicole's adult son, Alexander Kokinos, the second bedroom. From time to time the accused's other son, Peter,[10] would also stay, and would sleep in the third small room. On occasions Nicole's brother, Andrew Ioannidis[11] would stay for several months at a time, and he would sleep in the third small room. When the complainant and her brother Gregory stayed overnight, they would sleep on a mattress in the lounge room.
[10] Pseudonym used
[11] Pseudonym used
Allegations
19The complainant alleges that from a very young age the accused began touching her vagina as she sat on his lap in the kitchen, kissing her, and placing her hand on his erect penis. She alleges that the accused would sit with the zip of his pants open, using his shirt to cover his erect penis. She says he would take her hand and place it on his penis, moving her hand up and down until he ejaculated.
20She also alleges that he regularly touched her breasts and vagina on those occasions. This is said by the prosecution to be tendency evidence.
21The complainant alleges that the accused told her not to tell anyone about what he was doing, or she would not get a chocolate or a toy. She also says he made threats to her, saying if she said anything, he would make sure her mother ‘went six foot under’. She said she was petrified with fear, and too scared to say anything about what the accused was doing.
Charge 1.
22On regular occasions when the complainant and her brother were at the accused's house, the complainant alleges that the accused put on movies in the lounge room for the children to watch. She says when she was lying on the floor watching the movie, the accused sat behind her and moved her legs open before placing his hands on the outside of her underpants and touching her vagina and rubbing her clitoris. She says this progressed to placing his hands inside her underpants, rubbing her clitoris, and inserting his finger into her vagina. These events are reflected in Charge 1.
23On other occasions when in the lounge room watching movies, the complainant alleges that the accused sat next to her on the couch and placed a blanket over them. She says under the blanket he would touch her vagina and clitoris before inserting his finger into her vagina. These events are also part of Charge 1.
Charge 2
24Over the same period when the complainant and her brother stayed overnight, the complainant says she would go to sleep in the lounge room, however would regularly awake in the accused's bedroom. She says her clothes would be removed. She alleges the accused licked around her vagina and clitoris, and placed his mouth over her vagina and clitoris. These events form the basis of Charge 2.
Charge 3
25The complainant alleges that on occasions during this period, her mother and Nicole Colonomos would go on overnight trips a couple of times a year. She says on these occasions she woke in the accused's bedroom wearing only a singlet. She says the accused was on top of her, naked, and attempting to insert his penis into her vagina. These events form the basis of Charge 3.
Shed incidents
26The complainant also alleges that on an occasion of a birthday party held at the accused's house, the accused took her to the shed. He told her to lie down on a blanket, pulled her tracksuit pants and underpants down to her ankles, knelt next to her, and inserted his finger into her vagina. This is said to be part of Charge 1.
27During the same incident in the shed, she alleges the accused undid his own pants, pulled them down, and forced her legs open. She says he got on top of her and tried to insert his penis into her vagina. However, she resisted by closing her legs. The complainant says she got up and ran out of the shed. This is said to be part of Charge 3.
Nicole
28The complainant in her statement says:
"Nicole hated me, and would tell me that to my face. I don't know the reason why, but she despised me. I can remember her being like that from when I was a little girl".[12]
[12] Depositions pp.153-164
29The complainant also says in her statement:
"One night, I remember Nicole saw us in the bedroom. While I was lying on the bed and Vasili was on top of me trying to put his penis into my vagina, I looked up and saw her standing in the doorway. I don't know the circumstances of how she was there, but all I know is that she said, 'Get her up. Get her dressed and put her back in the lounge room'. I know she saw what Vasili was doing to me".
30At the committal hearing, held in August 2017, the complainant gave evidence that during occasions in the lounge room, Nicole walked in a number of times. "She saw him do what he used to do, and he used to say to her, 'I know what I'm doing'". Further, that she walked in "many, many times". When asked what she would do the complainant said, "She used to walk away and close the door so no one would see him doing what he did".[13]
[13] Depositions p.23
31At committal the complainant also gave evidence in relation to the shed that, "People would walk in or see things, but they'd never put a stop to it or question it". When asked who she was referring to, she stated, "It would be his wife".[14]
[14] Depositions p.64
Alexander Kokinos
32Alexander Kokinos[15] is the son of Nicole Colonomos. When he was ten years old his mother married the accused. He lived with the accused and his mother at 17 Latrobe Street, Brunswick, from the age of 15 or 16, until he was 24 years old. During the period of the charges he was in his 20s and did not spend a lot of time at the house. He had very little to do with the complainant or her brother.
[15] Date of Birth – 17 June 1960
33The complainant states that Alexander Kokinos walked in on an occasion in the lounge room when the accused was touching her, and that angry words were exchanged between Alexander and the accused. Mr Kokinos denies this.
34Mr Kokinos refused a police request for his mother to make a statement due to her fragile health at the time of the accused's record of interview.
35According to medical records, Nicole Colonomos was cognitively impaired prior to her death. Mr Kokinos confirmed this in evidence on a Basha[16] hearing last November describing his mother ‘making up stories’ and that she had been this way for some time, likely months if not years.
[16] R v Basha (1989) 39 A Crim R 337
36In relation to these allegations Mr Kokinos says in his statement,
"All I know is that when all of these allegations came out against Vasili, Mum told me that she would say that none of it was true."[17]
[17] Notice of additional evidence. Statement dated 14 May 2018
37At the Basha he elaborated, namely that after the accused returned from the record of interview,
"He was telling us what they said and Mum said, 'No that's not true. If they ask me I will tell them it's not true.' That was her exact wordings."[18]
[18] Tp.13
38Further,
"She said, 'I will tell them, I will tell the police that I know that that did not happen.'"[19]
[19] Tp.14
39The prosecution propose to lead that evidence. The defence confirmed that they would not object to that evidence.
40For completeness, I note there are a number of other prosecution witnesses proposed to be called.
Gregory Michelakis
41The complainant's brother, Gregory, has made a statement. He will give evidence that on one occasion when he was sitting on the couch in the lounge room, he observed his sister lying side by side with the accused on the floor. He says he saw the accused had his pants open and he could see his erect penis. He looked away. When he looked again, he says the accused was lying on top of the complainant and was rubbing his penis on her groin area.
Nico Michelakis
42The complainant's father, Nico Michelakis has made a statement. He describes an occasion when the accused told the complainant and Gregory that he had chocolates. He says he observed the accused put the chocolates inside his shirt at waist level before calling the children to come and get them. He says he became upset telling the accused never to do this to his children again.
43Of this incident, the complainant says she was nine years old and describes this event, albeit in slightly different terms.
Sara Antoniou
44In August 1988, the complainant celebrated her 10th birthday at the accused's home. It is slightly unclear whether this is the same birthday party incident I referred to earlier.
45A family friend, 14 year old Sara Antoniou was present at a birthday party and has made a statement. She says during the party other persons were present namely the accused and his wife, Ms Antoniou' mother, as well as a family friend Marina Andreas,[20] her daughter Iris[21] and her son.
[20] Pseudonym used
[21] Pseudonym used
46Ms Antoniou says during the party and with the adults inside the house, the accused invited her and the complainant into the shed. She says that once in the shed, the accused placed his hand on her shoulder before moving it down towards her breast. This is said by the prosecution to be an uncharged act, though in my view there will be a question mark over its admissibility.
47Ms Antoniou said she left the shed and went into the house. She says a short time later the complainant came running from the shed shaking and crying.
Ms Antoniou says she asked if the accused had touched her, but the complainant did not respond crying uncontrollably.48Ms Antoniou’ mother died in 2016 and she is therefore unavailable. The complainant attended the funeral of Ms Antoniou’ mother in March 2016. The accused was present.
49Marina Andreas has dementia and is unavailable. Iris Andreas and her brother have declined to make statements.
Isabella Zercho[22] and Samantha Trumble[23]
[22] Pseudonym used
[23] Pseudonym used
50The complainant and her brother Gregory spent time living with Isabella Zercho in a foster care arrangement made by ‘Focus’. The complainant says on one occasion the accused attended those premises and when left alone with her he made an approach to her in her bedroom. She says this was interrupted by
Ms Zercho.51The complainant says she made a complaint to Ms Zercho about the abuse and that as a result she was taken by a Focus worker to see a doctor.
Ms Zercho does not corroborate the incident described and denies that the complainant ever made a complaint to her or was taken to a doctor.52Ms Zercho is unwell. By agreement her statement is to be read to the jury.
53Samantha Trumble, formally of Focus, says that as a result of a sexual allegation made against ‘the godfather who had been babysitting her’ and reported by Ms Zercho, she took the complainant to Queen Victoria Hospital for medical examination. The doctor is unavailable. There are apparently notes of the attendance however these appear to relate to a timeframe earlier than the charges. Ms Trumble made no notes or report to police or DHS.
54The prosecution do not propose to lead any of the evidence about the complainant being taken to the doctor. They do not propose to call Ms Trumble.
Kaitlin Stephanidis
55The complainant's mother made a statement which contradicts the complainant in a number of respects including that she was never left to stay overnight at the accused's house. She does report an occasion where the accused visited her home. She says she observed the accused get into her daughter's bed and that she confronted him.
56The complainant gave a different version of this event at committal including that she ran from the house and never told her mother.
57Ms Stephanidis says her daughter was taken to a doctor by Ms Zercho and had her vagina examined, however she is not a direct witness to this. Given the approach to the evidence of Ms Trumble, I understand the Crown will not seek to lead this aspect of her evidence. It is likely inadmissible in any event though no submissions have been made about it.
58Ms Stephanidis does state that her daughter would cry when left with the accused and his wife. She says she developed a growing awareness that
Mrs Colonomos and the accused did not like Paula and they favoured Gregory. "They never said anything about this; it's just my thoughts."[24]
[24] Depositions p.186
Neighbours
59The complainant says that around the age of 11 she started to develop breasts and the accused fondled them. She says the sexual assaults became more frequent until a day when she ran crying to a neighbour's house. She says the neighbour took her into the house and asked her, "Is Vasili touching you where you don't want to be touched?" She says, "I told her he was” and that she remained there until her mother came. She says there was then a confrontation between her mother and the accused and thereafter she did not go back to the accused's house.[25]
[25] Depositions p.158-159
60The neighbour cannot be located. The prosecution do not propose to lead any of this evidence.
Counsellors
61The complainant said that she first had counselling as a 12 or 13 year old and then had a number of counsellors. She says she told a counsellor called Kerry about these allegations prior to 2001. No counsellors or records are available and I understand the prosecution will not lead this evidence.
School teacher
62The complainant said at committal that she tried to and did in part make a complaint to a school teacher called Vic. Victoria Kavanagh[26] has made a statement confirming she taught the complainant when she was in Grade 6. She remembered her well because of her cerebral palsy amongst other things, and she assisted her in the transition to Year 7. She denies any allegation was made to her by the complainant.[27]
[26] Pseudonym used
[27] Notice of Additional Evidence. Statement dated 23 August 2017
Permanent stay application - Principles regarding permanent stay
63The relevant principles are not in dispute. Indeed, they are well known having recently been the subject of a number of interlocutory appeals to the Victorian Court of Appeal. His Honour Priest JA outlined those principles in Hermanas v The Queen[28] drawing on what was said by His Honour Osborne JA in The Queen v FJL[29] and the cases cited by His Honour Osborne JA in that case.
[28] Martin Hermanus (A Pseudonym) v The Queen (2015) 44 VR 335
[29] R v FJL [2014] VSCA 57
64His Honour Priest JA also referred to a summary of principles outlined in the New Zealand case of CT v The Queen[30]. I do not propose to repeat them here other than to note the following:
[30] CT v The Queen [2014] NZSC 155
65Exercising a power to stay proceedings is an exceptional step, often referred to as a last resort. In cases of delay, there must be a fundamental defect which goes to the root of the trial and which cannot be cured. Critical factors to consider are the proven or likely prejudice to the accused on the one hand, and on the other hand, the public interest in the prosecution and conviction of persons guilty of serious offences.
66I must determine therefore whether there is unacceptable unfairness given the absence of witnesses and other evidence. If there is such unfairness I must then consider whether there are evidentiary rulings and/or directions which the trial judge could give to counteract any prejudice that the accused might otherwise suffer.
Grounds - defence submissions
67The principle ground relied on by the defence that the absence of Nicole Colonomos is so unfairly prejudicial to the accused that any trial would unacceptably be unfair. They point to the authorities which repeatedly draw a distinction between absent witnesses whose evidence may go only to contextual or peripheral matters, and witnesses whose evidence may go directly to the commission of the offences.
68The defence submit the resulting unfairness caused by Nicole's absence is probable, not possible.
69They submit that this unfairness is a fundamental defect which goes to the root of the trial, in particular given the facts in issue and the centrality of the credibility and reliability of the complainant. They say the evidence of Nicole Colonomos could materially affect the jury's assessment of those issues.
70Further, that no steps taken by the trial judge are capable of curing the unfairness.
71The defence point to and rely on the evidence of Alexander Kokinos. They submit that his evidence demonstrates that the lost evidence of Nicole would be exculpatory. They submit this is a compelling case where a permanent stay is the only way to deal with the unavailability of the accused's wife.
72As a secondary point, the defence rely on a number of other missing pieces of evidence or witnesses who are unavailable which they submit adds to the unfairness in a cumulative manner. These include the absence of Andrew Ioannidis who died in 2003, the absence of other persons present at the birthday party, the unavailability of the neighbours, the absence of the doctor at Queen Victoria Hospital, the absence of any counsellors or counselling records.
73They also rely on absence of opportunity to obtain any of the accused's employment records or potential alibi evidence given he was working full time.
74The defence also rely on the young age of the complainant at the time of the alleged offending and likely issues of reliability.
75Finally they point to the fact that these are course of conduct charges and to the attendant difficulty for the accused in making a meaningful defence beyond a bald denial. This fact it is said feeds into the incurable prejudice occasioned in particular by the loss of Nicole.
Prosecution submissions
76The prosecution oppose the application. They argue that there is only the possibility of unacceptable unfairness rather than the probability of it. In other words they highlight the fact that I must be satisfied that continuation of proceedings would, not could or might, result in unacceptable injustice or unfairness.
77They submit that the delay in this matter of 28 to 33 years is not inordinate in the context of historical sexual allegations.
78They highlight the public interest in disposition of charges of serious offences and convictions of persons guilty of such offending.
79In particular here, they submit that the complainant was a vulnerable child with a physical disability. The accused had access to her because of her unstable family life. The accused was in a position of trust, indeed in loco parentis. The offending was serious and protracted.
80There is public interest in the prosecution of offending such as this.
Analysis based on the general principles
Public interest
81I accept that there is public interest in the prosecution of offending such as this. Sexual offences against children are often committed in secrecy, without witnesses or other corroborating evidence. Children who are victims of such offences are often vulnerable and subject to a power imbalance. The damaged occasioned to them is usually instant, and often enduring.
82The criminality alleged in these offences is at a high end involving numerous acts of digital and oral penetration and attempted penile penetration over a protracted period of time and when the complainant was very young and particularly vulnerable. There was a significant breach of trust.
83The public interest in prosecution of such offending is a compelling factor weighing against the granting of a stay.
Delay
84I agree that the delay in this case is not inordinate. The law much better understands that there will often be a delay in the reporting of sexual offending. Indeed juries are given specific directions to the effect that there is no typical, proper or normal response; that some people complain immediately while others may not complain for some time and others may never make a complaint. Further that delay in complaint about a sexual offence is a common occurrence.[31]
[31] Jury Directions Act 2015 s.52
85Those directions go further requiring a trial judge to tell the jury that there may be good reasons for delay in complaint about a sexual offence.[32] In this case they would likely include directions as to the young age of the complainant, the power imbalance in the relationship, the fact the accused made threats to her, the nature of the relationship she describes with his wife and the difficulties within her own family of origin.
[32] Ibid s.53
86A delay of 28 to 33 years for complaint regarding sexual offending is not uncommon nor of such magnitude that of itself it occasions unacceptable prejudice or unfairness. There is no criticism, and nor could there be, of the complainant for not having made her complaint at an earlier time.
Age of the complainant
87Similarly I do not accept that the tender age of the complainant at the time of these events would result in ‘inevitable’ issues with her reliability.[33] Again, our courts are better informed and recognise that children, or adults giving evidence about events which happened to them as children, are well able to give reliable evidence.[34]
[33] Defence Submissions dated 10 November 2018 at paragraph 37(b)
[34] Roger Ward (a Pseudonym) v The Queen [2017] VSCA 37 at paragraph 36; Goillon v The Queen [2018] VSCA 194 at paragraph 66 and see ALRC Report 84 Seen and Heard: Priority for Children in the Legal Process at 14. Children’s evidence
Loss of contextual witnesses and evidence
88As a general proposition, the loss of evidence or unavailability of witnesses occasioned by delay does not necessarily render a trial unacceptably unfair. The High Court in Edwards[35] observed:
Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.
There is no general proposition of Australian law that a complete and unexceptional investigation of an alleged crime is a necessary element of the trial process or indeed a fair trial.[36]
[35] R v Edwards [2009] HCA 20
[36] Penney v R [1998] HCA 51
89The loss of the persons at the birthday party, the neighbours, the doctor from Queen Victoria Hospital, counsellors and counselling records, employment records or potential alibi witnesses, as well as the fact that Ms Zercho is unwell and Marina Andreas has dementia, in my view fall into the category of more common disadvantage occasioned by delay.
90Those matters relate to lost opportunity to explore that evidence rather than lost evidence. They would be adequately dealt with by a detailed forensic disadvantaged direction.
Andrew Ioannidis
91There is some conflict in the evidence as to how often Mr Ioannidis was present at the house. Alexander Kokinos stated that he was there on and off.
"He had come to live with us for a while. The wife would take him back, throw him out again, he would be back at our place. He'd come and stay two, three, four, five months."[37]
[37] T p.18
92When asked whether Andrew was there when Paula and Gregory were there, he said, "I think so".[38]
[38] T p.18-19
93At committal neither the complainant nor her brother remembered Nicole having a brother or that a person ‘Andrew’ stayed at the premises. Gregory Michelakis said that the third small bedroom was used for storage. According to Mr Kokinos, his uncle Andrew was working full time as a painter during periods when he resided with them.
94Taking the evidence of Mr Kokinos at its highest, I accept that Andrew Ioannidis is likely to have been present at times when the complainant was at 17 Latrobe Street and when sexual offences may have been committed against her.
95I accept the characterisation by defence that if present in the house or third bedroom at the time of any offending in the lounge room or when the accused took the complainant to the front bedroom, Mr Ioannidis could be compared to the parents in FJL.
96In that case, a single count with a between-dates range of two years was stayed by the trial judge and confirmed on Appeal. That charge related to a single event which was said to have occurred at night in the complainant's bedroom. Her bedroom was opposite the bedroom of the accused's parents. The accused was a grown man at the time of the alleged offending, and hence his parents were older and had both deceased by the time of the trial. There was no suggestion that they had witnessed the offending, however their loss was said to occasion a probable forensic disadvantage which was incurable.
97For my part and with respect I would reach a different conclusion on those facts. Sexual offences in particular offences against children not uncommonly occur when others are present; in another room, outside the house, in other areas of a school or similar setting. Such witnesses, not uncommonly mothers, are regularly called at trial. It is very rare for those persons to witness either the sexual act or to make specific observations of the complainant or accused in the aftermath. It would be entirely speculative as to what a witness in the next room would be in a position to hear or observe, especially where offending occurred on one discreet occasion. To my mind it would be anathema to the gains in prosecuting historical sexual offences to grant a stay based on the absence of such a witness.
98It could be argued here that Andrew Ioannidis, if present, would be a slightly more critical witness, in that the allegations here concern repetitive events. However there is no evidence that he had much to do with, or a particular closeness to or interest in the welfare of the complainant, or any reason to make particular observation of her. It is entirely speculative as to what his evidence would be if available and whether he was even there at the same time.
99His absence in my view does not go to the root of the trial or cause unacceptable unfairness. If I am wrong about that conclusion in my view a detailed forensic disadvantage direction could sufficiently cure that deficit.
100Which brings me to the evidence of Nicole Colonomos.
Nicole Colonomos
101Higher courts repeatedly draw a distinction between witnesses who are peripheral or could provide context, and witnesses who may be eyewitnesses or alibi witnesses.
102In Milton Jones v The Queen[39] the accused was a welfare officer at a residential facility for neglected children. He was accused by three boys who were residents of that facility. Two witnesses were deceased. One was a ‘cottage mother’ to whom one of the boys made a complainant. She made two statements denying any complaint had been made to her. She had passed away by the time of the trial however the prosecution agreed to read in her statement. The other witness was a superintendent at the home, said to have a close relationship with the accused.
[39] Milton Jones (a Pseudonym) v The Queen [2017] VSCA 111
103The Court of Appeal affirmed the decision of the trial judge to refuse to stay the indictment. Under the heading "Contextual evidence witnesses only", the Court of Appeal drew the following distinction:
"First, neither the cottage mother nor the superintendent was an eye witness to the specific events in issue, i.e. the charged episodes. They were never in a position to give direct evidence bearing upon the commission of the offences. … Their evidence could be characterised as being of a general, contextual nature.
…
Lost opportunity, not lost evidence.
Third, while it is true that the applicant will not have the benefit of cross-examining the witnesses on the various matters identified by his trial counsel, when pressed by this court on appeal the applicant's counsel was driven to accept that the complaint was really no higher than that the applicant has suffered a lost opportunity to ask these witnesses about these matters. It is a matter of complete speculation as to what these witnesses may have said or not said. This is not a case where actual or known evidence has been lost".[40]
[40] Ibid at paragraphs 66 - 69
104In referring to FJL, the court in Jones referred to the parents in the following way:
"…The missing witnesses [in FJL] belonged to an intimate and small group of persons who were physically proximate to the offending in question, and seemingly uniquely placed to give evidence in relation to the property layout and the movements and habits of the protagonists. Their evidence had the potential to go well beyond contextual circumstantial evidence. They were in a different category from the cottage mother and superintendent".[41]
[41] Ibid at paragraph 74
105In Jason Brewer v the Queen[42] the accused was the stepfather of a male and female complainant. Their mother was deceased, having died some 16 years prior to allegations being made. The offending was said to occur when the mother was at work. However, there was an occasion following penile penetration where the female complainant told her mother she had injured herself with the vacuum, and the following day had wet her pants at school, and the mother collected her.
[42] Jason Brewer (a Pseudonym) v The Queen [2017] VSCA 117
106At a later time, and apparently in protest of his innocence, the accused told the mother to take the female complainant to a doctor to determine if she was still a virgin.
107On another occasion the complainant ran to a neighbour and was pursued by the accused. He told the neighbour they had had an argument about a burnt cake. The neighbour was also deceased.
108In their joint judgment, their Honours Maxwell P and Kyrou JA made the following observations:
"The authorities demonstrate that in the case of historical sex offences, the delay in the laying of charges produces various forms of forensic disadvantage. Some forms of disadvantage are general in nature, such as the impairment of memory, while others are specific, such as the death of a witness or the non-availability of documentary evidence. Some forms of disadvantage are of little consequence, such as the death of one of a large number of witnesses whose evidence is identical, while others are capable of drastically undermining a successful defence to a charge, such as the death of a sole exculpatory witness".[43]
[43] Ibid at paragraph 53
109And later they observed with apparent approval that:
"… the judge noted that the female complainant did not suggest that any of that conduct occurred within the presence of or hearing of her mother".[44]
[44] Ibid at paragraph 58
110Despite counsel for the applicant arguing that the mother had ‘centrality to the narrative’, the joint judgment referred with apparent approval to the prosecution submission to the following effect:
"The Crown submitted that unavailability of a potential witness is a common occurrence. In relation to the complainant's mother, the Crown contended that her evidence would mostly be limited to background matters. It was not alleged that she was a witness to any of the offences or was present in the home when the abuse took place.
According to the Crown, any prejudice could be alleviated by directions and the exclusion of the alleged complaint evidence. The Crown sought to distinguish FJL. In the present case, by contrast to FJL, since it was not suggested that the mother was at home when any of the offending conduct took place, her evidence could only go to surrounding circumstances".[45]
[45] Ibid at paragraphs 76-77
111His Honour Croucher AJA gave a single judgment. While agreeing ultimately that the exercise of the discretion to refuse to stay proceedings was open to the learned trial judge, His Honour suggested that reasonable minds may differ in relation to the death of both the mother and the neighbour, and that in His Honour's view it was open to grant a stay on particular charges relevant to those witnesses.
112His Honour said:
"In addition to all of the more common disadvantages experienced by an accused when facing a trial many years after the alleged events, the deaths of the complainant's mother and the family's neighbour each present a specific evidentiary prejudice that arguably would make the trial on those particular charges unfair".[46]
[46] Ibid at paragraph 136
113In making those comments, he drew the distinction between peripheral and direct witnesses. He went on to describe the mother as central to the accused's claim of having asked her to investigate the complainant's virginity.
114In relation to the neighbour His Honour said:
"While the neighbour is not said to have witnessed the charged acts, her presence is arguably integral to the female complainant's allegations on those charges.
In my view it is arguable that the alleged interaction with the neighbour is so central to the female complainant's account of the charged allegations that the neighbour's absence is the equivalent of the absence of the accused's parents in FJL".[47]
[47] Ibid at paragraphs 144-145
115His Honour came to that conclusion even though he accepted that it was purely speculative as to what the neighbour may have said, and commented that it may have been unhelpful to the accused. He noted, however:
"…as I understand it, it was not known what the accused's parents in FJL would have been able to say if they were alive, and yet a permanent stay was made on the one charge, and upheld on an interlocutory appeal in that case. Further, while it may be crucial in some instances, I do not think that in every case it is necessary for an accused to be able to assert what an absent witness would say in order that the witness' absence be significant in determining whether a stay should be granted. In my view, it is still of importance that the alleged witness to a series of events intimately bound up with the allegations … is not available in circumstances where the applicant has told police that no such events occurred. While it is not known what the neighbour would have said about the complainant's allegations, given the applicant's account there is an evidentiary basis for him to assert that he is at least deprived of the possibility of having the jury hear that the neighbour denies the occurrence of any such event, or that she cannot remember it. In my view to conclude otherwise would tend to undermine the presumption of innocence. Further and in any event it is arguable that the absence of the witness leaves such a gap in confirmation of the complainant's narrative of the charged events that when combined with the other effects of delay, there is an uncomfortable uncertainty in proceeding to trial on the charges directly linked to that narrative."[48]
[48] Ibid at paragraph 147
116Later in 2017, the Court of Appeal heard the appeal of Green v The Queen. [49] In Green the complainant made allegations against her foster brother. Mr and Mrs Green, the foster parents, were both deceased.
[49] Joel Green (a Psuedonym) v The Queen [2017] VSCA 277
117The complainant's evidence was that Mrs Green despised her and mistreated her. Further, that she suspected Mrs Green knew what her son, the accused, was doing. The similarities to the present case are obvious.
118In determining that a stay should have been granted, the Court held:
"It is in that context that the unavailability of Mrs Green, the foster mother, is of particular moment. On the account given by the complainant, Mrs Green was the central figure in the setting in which it is alleged the applicant sexually abused her. In particular the description by the complainant of the appalling treatment allegedly metered out to her by Mrs Green constituted the context in which the offending took place. … In a sense the offending by the applicant was described as part of the miserable existence inflicted on the complainant by Mrs Green.
In those circumstances if she had been alive Mrs Green would have been a central witness in the case.”[50]
[50] Ibid at paragraphs 82-83
119I note the content of her evidence was in fact unknown, although given the descriptions by the complainant, the Court concluded she could hardly have been unaware of events occurring within the house.
120In Kenny v The Queen[51] decided in 2018, the Court referred approvingly to Jones and again made the distinction between contextual witnesses only and eyewitnesses.
[51] Jayson Kenny (a Pseudonym) v The Queen [2018] VSCA 220
121Since argument was finalised in this matter, I am aware that there have been two decisions in the Court of Appeal reviewing applications for permanent stays. On 25 January 2019 in the matter of David Carson v DPP[52] the Court referred approvingly to the fact that a stay was refused in circumstances where absent witnesses were ‘at the periphery’ and that what they might have said, had they been available to give evidence, was mere speculation.
[52] David Carson (a Pseudonym) v The Queen [2019] VSCA 4
122The Court went on to say:
"As this Court has previously said, the task of assessing forensic disadvantage for this purpose requires the judge to evaluate the lost forensic opportunity. That is, the opportunity to hear from particular witnesses or to make other investigations. Of necessity, the judge must consider the likely content of the lost evidence and its importance in the context of the trial. That will turn on what the missing witnesses are likely to have seen or heard of the alleged offending and the extent to which such evidence would have been likely to affect a jury's evaluation of the evidence to be given by individual complainants."[53]
[53] Ibid at paragraph 16
123They went on:
"To take an example discussed with counsel during argument, if there were an allegation that sexual offending had taken place in the midst of a social event attended by a number of persons, or at night in a crowded dormitory, then it would ordinarily be assumed that the evidence of others present when the alleged offending occurred would be very significant and its absence likely to create significant forensic disadvantage…"[54]
[54] Ibid at paragraph 17
124The Court noted that sexual offending often occurs in private and out of view. The critical issue therefore at trial will often be the credibility of the complainants regarding what they say occurred before, during and after the alleged offending.
125In Shannon v DPP[55] also determined in 2019, the Court again referred to lost opportunity rather than lost evidence.
[55] Raphael Shannon (a Psuedonym) v The Queen [2019] VSCA 27
126Turning then to Nicole Colonomos in the light of those authorities. It is a very unusual circumstance to have an eyewitness to offending such as this. There is no doubt that Nicole Colonomos would be central to the defence case if she was available.
127She was described by her son at the Basha as a ‘simple woman’ who hardly ever left the house; she hardly spoke English; she was not in paid employment but would spend her time working and cleaning around the house; she did not drive; her husband would do the shopping; she ‘very, very rarely’ went shopping; she had some Greek friends who would visit.
128There is a conflict on the evidence regarding whether Nicole Colonomos ever went on weekends away with the Greek Society. The complainant said she did so with her mother, Kaitlin Stephanidis, and that this provided opportunity for the accused to offend against her. Alexander Kokinos on the other hand says Nicole did not go on any weekends away, in fact only staying at his home for two nights in 24 years. He said, "My Mum's whole life was based either at home or watching the Greek channel. That was her whole life."[56]
[56] T p.25
129It is clear from those descriptions that Nicole Colonomos could give important contextual evidence regarding the layout of the house and shed, the sleeping arrangements of various persons in the house, the employment and movement of the accused, the cars owned by the accused, the pets she and the accused kept.
130More pertinent, she could give evidence as to her relationship with the complainant's mother and the arrangements for the children to visit; her relationship with the complainant and with Gregory; how often the children visited and whether either or both of them stayed overnight; where the children slept; where she and her husband would be and what they would likely be doing; where she and her husband slept and the timings of people going to bed; where Alexander, Andrew and Peter slept and how often they were present; whether she went on Greek Society trips; the details of any birthday party or parties for either or both Paula and Gregory; any observations of the complainant and/or Sara Antoniou[57] at a birthday party.
[57] Pseudonym used
131Most significantly, she could give evidence regarding whether or not she ever observed the accused committing offences against the complainant. In this sense, Nicole Colonomos is even more central to this case than the foster mother was in Green.
132I note that no submission was made to the effect that Nicole was complicit or would likely have been charged and would therefore have been unavailable. I proceed on the basis that the prosecution would not have taken that step.
133In summary, Nicole could not only give contextual evidence, but she could give direct evidence. Her evidence could materially affect the jury's assessment of the credibility and reliability of the complainant. That evidence goes directly to the facts in issue in this trial.
134Argument was made to the effect that Nicole Colonomos suffered cognitive difficulties, likely dementia, for some time prior to the complaint to the police, and therefore was unavailable even before the complaint was made. Similar argument was made in Green, where the foster mother had in fact died in 1971. That fact did not alter the court's decision.
Alexander Kokinos’ evidence of comments made by Nicole Colonomos
135There is, however, an added complication in this case, and that is the evidence of Alexander Kokinos. At first blush, the evidence of Mr Kokinos seems to bridge the gap created by the absence of his mother. That is, the prosecution will lead his evidence that when the complainant had made allegations that the accused had molested her, his mother refuted those allegations.
136A jury may well expect a wife to make such exculpatory statements, and therefore may not fathom the importance of that evidence. The defence submitted there are two critical aspects to the evidence of Mr Kokinos.
137First, they submit that although a jury will have the benefit of Mr Kokinos' evidence, and therefore will know in a broad sense what Nicole Colonomos would have said, a jury will not have the benefit of assessing her credibility and reliability in making that statement, or in having her elaborate on it.
138In particular, at the time she made her comments to her son, it was not known to the accused, and therefore to his wife, that the complainant's statement included allegations that Nicole had witnessed the offending, nor obviously what was said by the complainant at the later committal. Therefore, although a jury would have the general gist of Nicole's evidence, they are deprived of the full content of that evidence in important respects.
139The defence submit that the importance of having Nicole elaborate on her comments would be critical to a proper assessment of her denials, and in turn of the credibility and reliability of the complainant.
140Secondly, the defence submit that, unlike cases where it is purely speculative as to what a missing witness will say in evidence, here it is known that the evidence will be exculpatory. This highlights the extreme significance of it to the defence case. In other words, it is not lost opportunity, but lost exculpatory evidence.
141The defence also point to the difficulty for the prosecution in dealing with the evidence of Alexander Kokinos and the comments attributed to Nicole Colonomos. Namely that the prosecution cannot go to a jury saying they should accept her comments for their truth, as those contradict the evidence of the complainant.
142In addition, the defence point to comments in FJL where consideration was given to the apparent imbalance of prosecution and defence evidence. In other words, in a case where there is a degree of corroborative evidence for the complainant, it is critical that the accused be able to make a full defence to the charges.[58]
[58] See FJL [2014] VSCA 57 at paragraph 80
143I accept each of those defence submissions.
Course of Conduct Charges
144The defence also pointed to the fact that these are course of conduct charges, which require only proof of more than one offence within the specified timeframe. They may be found proven without proof of any particular number of incidents of the offence, or the dates, times, places, circumstance or occasions of the incidents.
145Sex offences against children, historical or otherwise, are often framed between dates, and this does not occasion a reason for a stay of proceedings.[59]
[59] See eg. Carson [2019] VSCA 4 at paragraph 20
146Course of conduct charges were introduced to overcome difficulties for complainants who were often fishing for memory of specific events in a sea of abuse. Although in my view that fact would not of itself result in a permanent stay, it does mean that an accused is largely left to a bald denial. The prosecution do gain an advantage in the lack of specificity required, and in this sense, too, I accept that the evidence of Nicole Colonomos becomes even more critical.
Conclusion
147I am satisfied that the absence of Nicole Colonomos' evidence constitutes unacceptable unfairness to the accused, and that it is a fundamental defect going to the root of the trial.
148Finally, I have considered whether any evidentiary rulings and or directions could cure that unacceptable unfairness. The fundamental nature of the defect is such that in my view, there is no direction which could be given to adequately address the absence of Ms Colonomos.
149As such, and in the exercise of my discretion, I propose to grant the application to permanently stay the proceedings.
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