Director of Public Prosecutions v Garcia (a pseudonym)
[2015] VSCA 275
•15 September 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0175
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CLAUDE GARCIA (A PSEUDONYM)[1] |
[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the accused.
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| JUDGES: | MAXWELL P and OSBORN JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 September 2015 |
| DATE OF JUDGMENT: | 15 September 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 275 |
| JUDGMENT APPEALED FROM: | DPP v [Garcia] (Unreported, County Court of Victoria, Judge Mullaly, 10 September 2015) |
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CRIMINAL LAW – Appeal – Interlocutory appeal – Stay – Sexual offences – Multiple charges of sexual penetration of child under 16 – Originally charged as single act offences – Child complainant gave evidence in VARE – Cross-examined in special hearing – Prosecution sought to replace single act charges with ‘course of conduct’ charges – Whether unfair to accused – Whether unfairness curable by recalling complainant for further cross-examination – Adverse impact on complainant – Contrary to policy of legislative protection for child witnesses – Unfairness not curable – No error in exercise of discretion to order stay – Leave to appeal refused – Criminal Procedure Act 2009 ss 164, 295, 445, schedule 4.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr N Papas QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For the Respondent | Mr M G O’Connell SC with Mr G Casement | Stary Norton Halphen |
MAXWELL P:
The respondent is facing trial on a number of charges of sexual offending against his granddaughter. Following the filing of a new indictment under s 164 of the Criminal Procedure Act 2009 (‘CPA’), he faces six charges, of which two are charged as ‘course of conduct’ charges as defined in Clause 4A of Schedule 1 to the CPA.
On application by the defence, the trial judge on 9 September 2015 ordered that the two course of conduct charges be permanently stayed. The following day, the Crown having indicated its intention to seek leave to appeal, his Honour certified pursuant to s 295(3)(b) of the CPA that the interlocutory decision was
... of sufficient importance to the trial to justify it being determined on an interlocutory appeal.
The Director of Public Prosecutions now seeks leave to appeal against the stay order. For reasons which follow, I would refuse leave to appeal.
Procedural history
On 9 July 2014, the child complainant gave evidence in the form of Video and Audio Recorded Evidence (‘VARE’). A second VARE, restricted to limited subject matter, was completed by the complainant on 25 November 2014.
The original charges were filed at Melbourne Magistrates’ Court on 19 December 2014. A contested committal hearing was conducted on 22 April 2015 and 12 May 2015, at the end of which the respondent was committed to stand trial in the County Court.
The original indictment (F1009588) was signed on 21 May 2015 and an initial directions hearing was conducted on 25 May 2015. On 30 June 2015, a second indictment (F1009588.1) was filed by the prosecution, correcting a date error in the original indictment. On that day, the respondent’s wife, who is suffering from a terminal illness, gave pre-recorded evidence.
The respondent’s defence was filed on 6 July 2015. Between that date and the commencement of the trial on 24 August 2015, further notices and applications were filed regarding tendency evidence, DNA evidence and proposed Basha hearings.
On the first day of trial, certain concessions were made by the prosecution regarding tendency evidence and the methodology for determining the ‘first occasion’ of charges 3, 4 and 5 of the indictment. Further discussion was had regarding the circumstances of charge 2.
The following day, the prosecution announced that they would not proceed with charge 2 and filed an amended indictment with that charge removed (F1009588.2).
The child complainant was cross-examined at a special hearing conducted on 1 and 2 September 2015. At that same hearing, the respondent made application for a stay of charges 3, 4 and 5 on the basis of a lack of particularity.
The following day, the prosecution indicated that a new indictment would be filed over, removing charge 4 and amending charges 3 and 5 to convert them to the newly available ‘course of conduct’ charges.[2] The effect of the change was that, instead of each charge alleging a single act of sexual penetration ‘between dates’, the allegation was of a ‘course of conduct’ of sexual penetration over the period between the specified dates.
[2]Criminal Procedure Act 2009 s 445 and sch 4. These provisions came into force on 1 July 2015.
The prosecution made application to file the new indictment (F1009588.3) on 4 September 2015. The respondent opposed this application and, in the alternative, sought a stay of the new indictment.
On 9 September 2015, the judge granted a permanent stay of the course of conduct charges.
The ruling under challenge
As the judge noted, the remedy of a stay is available only if the conduct of the trial will work an unfairness to the accused which cannot be cured. His Honour said:
… [s]uch a remedy is only available if as was said by the High Court in Dupas v The Queen that nothing a trial judge can do in the conduct of the trial can relieve against unfair consequences. In other words, the stay is available if and only if the abuse cannot be cured by some other means. The public interest in wrongdoers being brought to justice must be weighed in the balance with the public interest in the courts ensuring that an accused receives a fair trial. In this regard I cannot ignore in this case the prosecution seeks to prosecute the accused for extremely serious offences where it says a very young child was systematically sexually abused. There is a high public interest in such matters being properly tried and determined by juries rather than stopped by the exercise of the court's power to stay.
His Honour's ruling was based, he said, on the presumption that the laying of the new course of conduct charges would leave the accused with no real choice but to cross-examine the complainant again ‘and perhaps at greater length’. On this application, senior counsel for the Director conceded — properly, in my view — that his Honour was correct to proceed on that assumption.
His Honour recorded in his reasons the prosecutor's submission, to the effect that there were
... in any event alternative remedies to a stay that will overcome any unfairness, that is, the recalling of the complainant.
His Honour then dealt at some length with the considerations which led him to conclude that the proposed remedy — the recalling of the complainant — was not available.
I pause to point out that, there having already been cross-examination of the complainant in the special hearing, s 376(1) of the CPA would prohibit further cross-examination without the leave of the Court. In short, the proffered remedy would have depended on the grant of leave by the trial judge.
In his Honour’s view, the recalling of the complainant for further cross-examination was
… a proposal that sets its face against what are the key procedures and policies that underpin the procedures that will be followed in a criminal trial where a child is the complainant. …what I am directing attention to at this stage is the finding of an abuse or injustice and the proposed remedy are in fact in this case very closely related. In my view a central part of the abuse or what would erode the public’s confidence in the system is to have a trial where such a young child is required or at risk of having to give evidence and be cross-examined twice.
If the remedy to the injustice that arises is to say the complainant can be recalled to give evidence, then the abuse is magnified, not cured or ameliorated.
His Honour proceeded to describe the statutory scheme established to protect children in their giving of evidence:
The procedures utilised in this case are centrally important to the questions to be resolved.
The procedures are not the trial procedures as developed by the common law. Rather they are the product of modern statute. Statutes themselves arise from significant law reforms aimed at enabling important policy considerations to be converted into practical outcomes, the foremost of those being the establishment of procedures to ameliorate the inherent difficulties and stresses that face children and other vulnerable witnesses in giving evidence in our adversarial system of criminal justice.
Thus, in this state, a statutory regime is developed to allow a child like the complainant in this case to be able to give evidence against a hitherto very close family member, and give that evidence as the accuser, the primary witness in the prosecution case, and do so with a minimum of stress to her and the least risk of the process itself causing secondary trauma.
This aim or ideal was identified over 15 years ago in the earliest days and first iterations of these statutory reforms by the Court of Appeal in R v NRC. Winneke P put it succinctly in referring to s 37(b) of the Evidence Act 1958 that established a system of video and audio taped evidence... He said:
"These provisions form part of a number of statutory procedures which have been introduced in recent years into the law of this state which have, as their primary purpose, the reduction of stress upon victims of sexual offences by the rigours of curial proceedings."
His Honour pointed out that these statutory procedures were introduced to minimise the effect of what Redlich JA in Martin described as[3]
an extremely traumatic experience for children particularly if exposed to what may be searching, aggressive or intimidating cross-examination.
[3]Daniel Martin v The Queen [2013] VSCA 377, [26], quoting from Australian Law Reform Commission, Seen and heard: priority for children in the legal process, Report No 84 (1997), [14.48]–[14.50].
The trial judge continued:
It stands to reason, and the provisions referred to confirm for me, that to give evidence once is traumatic enough for a child. To be compelled to return, having been told it was all over and to endure the whole thing or even part of it again is a very serious matter for the court to contemplate.
His Honour noted that the standard procedure had been adopted in the case up to that point. That is, the complainant's evidence-in-chief had been taken in the form of a VARE and she had then been cross-examined in a special hearing. His Honour said:
Once that was concluded the complainant was excused. As I said, to my eyes she looked much relieved to have this ordeal of the court over and done with.
Noting the prosecutor's submission that there were competing considerations to be balanced, his Honour concluded in these terms:
It is quite accurate that this is a balancing of competing considerations. Mindful of the implications of a stay, I am satisfied that to permit the laying of the course of conduct charges at this point in time would be an abuse. It would tend to or would erode the public's confidence in the system of justice and in particular, the capacity of the system of justice to deal with young complainants and an accused who denies serious allegations. It would create an injustice such that the court's obligation to secure a fair trial or as fair a trial as can possibly be had … would not be met.
His Honour noted a submission by defence counsel that the trial was already under way, as the evidence of the complainant and of the respondent’s spouse had concluded. Accordingly, it was submitted, the proposed filing of the new indictment containing the course of conduct charges was ‘well capable of causing injustice and indeed oppression’.
As his Honour recorded in his reasons, the defence contention was that the accused
... was asked to meet the prosecution case in the cross-examination of the central prosecution witness and he has done it and he should not have to do it again especially in the circumstances as to why it has come to this and especially in light of the statutory regime to avoid it.
His Honour also upheld this submission, saying:
It seems to me that there is an injustice to the accused with having done all he could to meet the case put by the prosecution and he properly raises inherent problems with the pleadings. At this point, rather than sit on his hands, he is met then with new charges with more serious ramifications. That approach tends to erode the public's confidence in our system as a fair one.
Finally, his Honour noted the further potential difficulty affecting the respondent's wife, who is terminally ill. As already noted, she is a prosecution witness and, like the complainant, was examined and cross-examined in advance of the empanelment of a jury. Although defence counsel did not submit that she would inevitably have to be further cross-examined if the course of conduct charges proceeded, they were not able to rule out that possibility.
The prosecution conceded, so his Honour recorded, that given the wife’s serious illness, it could be stressful both to her and to the accused to have to deal with those circumstances, all the more so if she had to be called back to give further evidence.
The arguments on the appeal
Senior counsel for the Director accepted that this application could only succeed if error of the kind referred to in House v The King[4] were shown. These reasons will demonstrate that no such error has been shown.
[4](1936) 55 CLR 499.
The principal argument was that, by taking into account the potential impact on the complainant of allowing the course of conduct charges to proceed, his Honour had taken into account an irrelevant consideration. The only relevant matter, it was said, was whether there was any unfairness to the accused. Adverse impact on a third party could not bear upon the exercise of the discretion.
This argument may be disposed of shortly. As was pointed out in the course of argument, the question for the judge was whether the unfairness to the accused resulting from the introduction of the course of conduct charges could be cured in the way the prosecution submitted that it could be. The cure proposed, as I have said, was the recalling of the complainant. It was therefore not only relevant but essential for the court to consider what impact that course would have on the complainant herself. After all, his Honour had to decide whether the course proposed was a course which was open to him to take in the conduct of the trial. The impact on the complainant was therefore a highly relevant consideration.
Counsel for the Director next submitted that, if the effect on the complainant was relevant, the Director had been denied the opportunity to lead evidence and make submissions about the fitness of the complainant, to be subjected to further cross-examination. This argument must also be rejected.
As counsel for the respondent pointed out, the issue of the impact on the complainant was the subject of active debate before the judge in argument on the stay application. The prosecution had every opportunity, if it had been considered necessary, to seek time to put on evidence or advance further submissions relevant to that question.
His Honour was at pains in his ruling to acknowledge the care with which the cross-examination of the complainant had been conducted by defence counsel. As already noted, however, he observed that the process had been 'not easy' for the complainant. His Honour referred more than once to her evident relief at being excused upon the conclusion of the cross-examination.
In my respectful opinion, his Honour's ruling reveals that he directed himself correctly as to the legislative purpose underpinning the special procedures established to reduce the stress on child complainants who give evidence in trials of this kind. It was, moreover, well open to his Honour to conclude that the recalling of the complainant, whom he had seen give evidence and be cross-examined, would be likely to cause her unjustified harm and distress, contrary to the clear policy of the legislation, and hence to conclude that the proposed cure to the unfairness was unavailable.
As to the other grounds, it was but faintly argued that the judge was in error in finding that there was unfairness to the accused as a result of the laying of the new charges. It was well open to his Honour — and senior counsel for the Director did not seriously dispute this — to find that it would be unfair to the respondent to have to face the (quite different) course of conduct charges, unless he were in a position to cross-examine the complainant again.
It was then said that the judge had failed to give sufficient consideration ‘to the fact that the contested evidence in the case was no different following additional charges’. As has already been made clear, however, the change in the charges gives rise to a fundamental change in the character and significance of the evidence. What was previously to be evidence of uncharged acts, led only to give background or context to the charged act in respect of each cluster of allegations, becomes evidence of charged acts, each alleged act of penetration forming part of the alleged course of conduct.
Finally, it was said, the judge erred in staying the charges ‘when they were filed prior to the commencement of the trial before a jury’. With respect, this submission elevates form over substance and is without merit. As senior counsel for the Director conceded in argument, as a matter of substance the trial had commenced. The evidence of two prosecution witnesses, including the chief witness, had already been concluded.
In the circumstances, it is unnecessary to decide whether — had the interests of the child complainant not been a consideration — the stay would nevertheless have been justified purely because of the stage of the trial at which the prosecution introduced new charges, that is to say, after the completion of the cross-examination of the complainant, that being the first stage at which evidently the prosecution realised that the charges were likely to be defective for want of particularity.
Suffice it to say that I regard this as a materially different case from Pollard,[5] given the significance of the change from ‘single act’ charges to ‘course of conduct’
charges. I note in passing that in Pollard it was regarded as significant to the removal of unfairness to the accused that he had had the opportunity to cross-examine the complainant again, notwithstanding the conclusion of the special hearing, following the filing of a new indictment.
[5]Pollard v The Queen (2011) 31 VR 41 (‘Pollard’).
As the judge made clear, that was the critical question here, namely, whether that opportunity could be made available to the accused, For the reasons which his Honour gave, it could not. Accordingly, the unfairness was not capable of being cured. It was well open to the judge to conclude, in the unusual circumstances of the case, that there was nothing he could do as trial judge to remove the unfairness constituted by the introduction of the course of conduct charges.
OSBORN JA:
I agree that leave to appeal should be refused for the reasons stated by the President, subject only to the following.
The trial judge was entitled to stay the prosecution of the course of conduct charges to prevent an abuse of process or the prosecution of a criminal proceeding which would result in a trial which was unfair.[6]
[6]See, eg, Barton v The Queen (1980) 147 CLR 75, 95-7 (Gibbs ACJ and Mason J, with whom Aickin J agreed), 107 (Murphy J), 109 (Wilson J); Jago v District Court (NSW) (1989) 168 CLR 23, 25–6 (Mason CJ), 48–9 (Brennan J), 71 (Toohey J); Williams v Spautz (1992) 174 CLR 509, 518 (Mason CJ, Dawson, Toohey and McHugh JJ); Dupas v The Queen (2010) 241 CLR 237, 243–5.
An abuse of process may arise in circumstances where evidence is destroyed or the accused is otherwise prevented from fairly meeting the case against him.[7]
[7]Holmden v Bitar (1987) 47 SASR 509, 517–8; R v Reeves (1994) 121 FLR 393, 415–6.
In the present case, defence counsel cross-examined both the complainant upon the special hearing and the accused’s wife for the purpose of pre-recording her evidence on the assumption that the Crown case was as particularised in the initial
indictment and as articulated in a written opening provided in accordance with the provisions of Criminal Procedure Act 2009.
The introduction of course of conduct charges raised issues of unfairness of which the trial judge was able to resolve in part because he had had the benefit witnessing the cross-examination of the complainant on the special hearing. In my view, it was open to the trial judge to conclude that it would not be possible for a fair trial to be conducted on the course of conduct charges involving further cross-examination of the complainant in the circumstances which had arisen. In particular, I am of that view because of the following factors:
(a) the course already charted in the cross-examination of the complainant upon the special hearing by defence counsel responded to the indictment as it then was;
(b) it would be materially oppressive to the complainant to require her to be cross-examined again;
(c) such cross-examination would erode or tend to diminish public confidence in a system intended to minimise and strictly limit stress upon child witnesses in matters of this kind;
(d) any attempted intermeshing of the recording of the special hearing which had already taken place and a recording of subsequent cross-examination would be, to quote the trial judge, ‘self-evidently extremely difficult to achieve’;
(e) the changes in defence strategy on further cross-examination which would be necessary to respond to the course of conduct charges would almost inevitably be apparent to the jury and prejudice the accused;
(f) the re-opening of the evidence of the 10-year-old complainant would confront defence counsel with a forensic challenge which they should not, in fairness, have to confront;
(g) any evidence given on the further cross-examination of the complainant which entered into areas in respect of which the accused’s wife had given evidence, would give rise to special prejudice because she is suffering from terminal bowel cancer and may not herself be able to be recalled to answer or deal with any new matters of detail arising from the complainant's fresh evidence adduced in cross-examination; and
(h) in turn, defence counsel would be required to cross-examine the complainant in the knowledge that the accused’s wife might or might not be able to give further evidence.
As will be apparent from what I have said, the issues of a fairness arising in this case are unique to its facts.
Having regard to those facts, it cannot be said the trial judge miscarried in the exercise of his discretion, nor do his oral reasons disclose that he took into account irrelevant considerations.
The conclusions of the trial judge were:
It is quite accurate that this is a balancing of competing considerations. Mindful of the implications of a stay, I am satisfied that to permit the laying of the course of conduct charges at this point in time would be an abuse [because]:
(1)It would tend to or would erode the public’s confidence in the system of justice and in particular, the capacity of the system of justice to deal with young complainants and an accused who denies serious allegations.
(2)It would create an injustice such that the court’s obligation to secure a fair trial or as fair a trial as can possibly be had … in my view, would not be met.
(3)No remedy is available to cure the unfairness and in fact the [proposed] remedy of recalling the complainant, which would have to occur, simply and unfortunately magnifies the problem.
These conclusions should not be overturned.
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