Director of Public Prosecutions v Gil

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0127

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
ADRIAN GIL (A PSEUDONYM)	Respondent

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JUDGES:	McLEISH, LYONS and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2024
DATE OF JUDGMENT:	17 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 241
JUDGMENT APPEALED FROM:	DPP v [Gil] (County Court of Victoria, Judge Dalziel, 17 July 2024)

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CRIMINAL LAW – Interlocutory appeal – Permanent stay – Sexual penetration of child under 16 years – Other allegations against respondent by same complainant in trial and prior case led to acquittals – Complainant’s credibility said to be adversely affected by prior testimony – Forensic decision for defence counsel whether to lead evidence regarding prior allegations to attack complainant’s credibility – Prejudicial effect – Trial judge ordered permanent stay on basis that trial would be so unfair as to bring administration of justice into question – Evidence on acquitted charges not so compelling as to complainant’s credibility as to make forensic choice unfair – Other avenues to attack complainant’s credit available – Leave to appeal granted – Appeal allowed.

Ballardv The King [2024] VSCA 26, applied.

Brown v The Queen [2020] VSCA 26; Parsons v Director of Public Prosecution [2020] VCC 1704, distinguished.

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Counsel
Applicant:		Ms A Moran
Respondent:		Mr T Marsh with Ms S Stafford
Solicitors
Applicant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	Emma Turnbull Lawyers

MCLEISH JA
LYONS JA
KAYE JA:

The Director of Public Prosecutions seeks leave under s 295 of the Criminal Procedure Act 2009 to appeal against a permanent stay of a charge of sexual penetration of a child under 16 years, contrary to s 45(1) of the Crimes Act 1958 as amended by the Crimes (Amendment) Act 2000.

Three indictments and six trials

The charge is one of several brought against the respondent, in a number of indictments involving three different complainants. The first indictment charged the respondent with an indecent act with a child under 16 years between 2008 and 2009, and also contained the charge the subject of the disputed stay, which concerned conduct alleged to have occurred in 2010. The complainant in both matters, whom we will call ML, was the sister of the respondent’s partner (FS). The first indictment also contained five charges of sexual offending against another child under 16 years, being the respondent’s daughter (whom we will call FO).
After a trial, the respondent was convicted of the subject charge and acquitted of the indecent act charge (which it is convenient to call the ‘kitchen charge’). He was also convicted of three of the charges involving his daughter. It was subsequently realised, however, that the trial judge had signed the indictment. As a result, the convictions were set aside and a new trial ordered on the four extant charges (one involving ML and three involving FO).[1]
[1]Santos (a pseudonym) v The King [2023] VSCA 320 [30] (Priest, Beach and Walker JJA).
In the meantime, in another trial, the respondent was acquitted of all charges on a second indictment, which charged eight sexual offences against ML, mainly in 2012. This offending was alleged to have occurred after ML had turned 16.
Although not directly relevant to the present application, there was also a third indictment by which the respondent was charged with offending against the older sister of his partner. The respondent was acquitted of those charges also.
The trials of the charges involving ML were beset by difficulties. There were three trials of the charges in the first indictment. The first jury was empanelled on 6 May 2022. The first two juries were discharged, one on 9 May 2022 after a juror tested positive to COVID-19 and the other on 17 May 2022 for reasons personal to the judge. The third trial of the charges in the first indictment ultimately commenced on 9 June 2022 and verdicts were delivered on 21 June 2022. In total, about five weeks were lost in the earlier attempts to try the charges.
There were also three trials of the charges in the second indictment. The first jury was empanelled on 19 July 2022. The first two juries were again discharged, on 20 July 2022 after a juror became unwell, and on 1 August 2022 after a juror tested positive to COVID-19. The third trial of the charges in the second indictment commenced later on 1 August 2022 and verdicts were delivered on 8 August 2022. In total, about two weeks were lost in the earlier attempts to try these charges.

Charge sought to be stayed

Before coming to the permanent stay application, it is necessary to set out the allegations in respect of the two charges involving ML in the present trial. First, the charge that has been stayed alleged sexual penetration of a child under 16 years. The summary of prosecution opening alleges that:
In March 2010, not long before her 16th birthday, the [respondent] picked [ML] up from a counselling appointment at Orygen Health in Parkville in his red Toyota Prado.
On the drive home [to the home of FS and the respondent in Westmeadows], the [respondent] told [ML] he liked her and wanted to have sex with her. She told him she did not want to. He asked her if she was [a] virgin. She did not want to tell him she was, so said she was not. Instead of driving straight home, he drove [ML] to his mother’s house … in Braybrook. He opened the door with a key, took her inside and held her up against the hallway wall, kissing her to the face and neck. She tried to avoid the kisses. (context/other misconduct)
The [respondent] walked [ML] to the second bedroom of the unit and told her to bend over and pull down her pants. Frightened, she did as she was told and froze. The [respondent] put a condom on his exposed penis and penetrated her vagina from behind. He continued to push his penis in and out, telling her ‘Oh you’re right, you’re not a virgin are you’. It stung as he penetrated her. (Charge 1 – sexual penetration of a child under 16 – penis/vagina).
After he ejaculated, [ML] pulled up her pants and returned to the Prado as told. She felt nervous and scared. The [respondent] then drove them back home to Westmeadows.

Acquittal on ‘kitchen charge’

Secondly, the ‘kitchen charge’, of which the respondent was acquitted, was described in the prosecution opening as follows:
When [ML] was 14 years old she was living with her mother … in Altona. [ML] had been having a tough few years at home. Her mother was an alcoholic and she was finding school difficult.
After an approximate two year period of not seeing much of her sister [FS], [ML] reconnected with [FS] a few months before her 15th birthday in March 2009.
[FS] and the [respondent] were living in Sunbury. They had three children together at that time ... [ML] would visit to see her sister and the children.
[ML] found the [respondent] was a bit ‘touchy-feely’ and he would rub her arm or back.
The first time something sexual happened with the [respondent] was before [ML] turned 15. She was staying overnight at the home in Sunbury. [ML] had wanted to visit her newborn nephew ... She recalls he was in a swing in the lounge room. [The nephew] was born in November 2008.
At night [FS] was putting [the nephew] to sleep while [ML] was serving rice in the kitchen. The [respondent] came into the kitchen and rubbed his penis against her buttocks. He held her hips on either side with both his hands, and pushed his groin into her at the same time as pulling her back into him. [ML] told him ‘Don’t’ and tried to push him back off her. Scared, she went to another part of the house. (Charge 1 – indecent act with a child under 16 – rubbing penis against bottom)
As mentioned, the first indictment also contained five charges of offending against FO, a child under 16 years. It is not necessary to set out the details of those charges.

Second indictment charges

It is also necessary to outline the details of the charges in the second indictment. The respondent was acquitted of all charges, the details of which were set out in the prosecution opening for the trial of these charges as follows:
After [living with FS and the respondent in Westmeadows for] about 3 months [during early 2010, ML] moved back to … Altona Meadows to live with her mother.
Over the next few years [ML] would visit and stay over at [FS’s] house. She would be picked up and dropped off by the [respondent]. When she returned she would tell her mother she did not want to be picked up by the [respondent] or go there.
The [respondent] met often with [ML] after the first sexual intercourse.[2] She felt she had to do what he said and if she didn’t, he would keep on at her until she did. Sexual activity happened about 30–40 times. A number of encounters took place at vacant paddocks near Altona Meadows baseball park. (context/other misconduct)
[2]That is, the sexual intercourse constituting the subject charge described at [8] above.
…
On one occasion when she was 16 years old, the [respondent] phoned [ML] and arranged to meet her at North Melbourne train station. He drove her to the Formula 1 hotel in Sydney Road, Fawkner. He told her to wait in the car while he went to reception. Once in the room, the [respondent] had her lay on the bed, then penetrated her vagina with his penis. He drove her back to North Melbourne station afterwards. (context/other misconduct)
...
Charge 1 and 2 – Altona Meadows
On an occasion when [ML] was aged 16, she had stayed overnight at the home of her sister and the [respondent]. The next morning he drove her home in his Toyota Prado. On the way back to her home in Altona [Meadows], he diverted down a road near the baseball stadium and pulled into a paddock.
[ML] told the [respondent] ‘I don’t want to do anything I don’t want to have sex’. He kept trying to convince her to have sex but she said no. He was becoming angry and frustrated.
The [respondent] was touching her vagina through her pants with his hand until he finally gave up. (Charge 1 – indecent assault – touch vagina) He asked her to take her breasts out of her bra. She was scared what he might do if she did not, so she complied. The [respondent] played with her breasts with his hand and kissed them with his mouth. (Charge 2 – indecent assault – kiss breasts)
...
Charge 3 – Altona Meadows
On an occasion when [ML] had turned 17 years old, she was at home alone at … Altona Meadows. The [respondent] came to the door to drop something off. When he realised [ML] was home alone he became agitated and pushed her to her room.
[ML] knew he wanted to have sex with her and said ‘no,’ indicating her lack of consent. He told her to bend over her bed and to pull her pants down. She complied. He penetrated her vagina with his penis from behind and finished very quickly. The complainant felt violated. (Charge 3 – rape)
Charge 4 and 5 – Rockbank
When [ML] had turned 17 years old, there was an occasion where the [respondent] picked her up from her home in Altona [Meadows] in his Ford vehicle to take her to visit [FS] and their children in Melton. In the car he asked her if [FS] had said anything to her about him.
He drove along the Melton Highway with [ML] in the front passenger seat. As they drove he asked her to touch his penis and rub it. She did not want to but thought saying no was pointless. The [respondent] pulled her head towards him and kissed her. She told him to watch the road. (context/other misconduct)
The [respondent] exposed his penis and asked her to suck it. She did not want to but he said ‘Just do it.’ She complied as she believed there was no other option. She put his penis in her mouth and gave him oral sex. (Charge 4 – rape)
The [respondent] pulled the car over in a side street in Melton. She told him she did not want to have sex, indicating her lack of consent, but he ignored her. He told her to bend over the passenger seat and pull her pants down. She complied. He penetrated her vagina with his penis and ejaculated inside her vagina. He told her he wanted her to have his baby and he could be the child’s uncle. (Charge 5 – rape)
…
Charge 6 – Braybrook
On another occasion when [ML] was age 17, the [respondent] rang her on her mobile. She tried to tell him she wasn’t allowed out, but the [respondent] said he knew she was lying and he was waiting a few streets away. [ML] felt she had no choice but to meet him. The [respondent] then drove her to his mother’s home … in Braybrook.
The [respondent] took her inside. [ML] kept saying she wanted to go home. The [respondent] walked up to her and kissed her aggressively and roughly. [ML] tried to fight him against him and push him off, indicating her lack of consent. The more she did this, the rougher he got. The [respondent] was interrupted by a phone call from his wife [FS] asking where he was and what he was doing. He said he was at his mother’s. (Charge 6 – indecent assault – kissing)
After this [ML] begged him to take her home. He drove her back and dropped her off four streets away from her house.
Charge 7 and 8 - caravan in Sunshine
[ML] was turning 18 on 17^th March 2012. The night before the [respondent] insisted on being with her to turn 18. She did not want him coming to the house so she met him outside at about 10pm. Once in his car, he never mentioned her birthday again. He drove her in his Toyota Prado to a junkyard off McIntyre Road in Sunshine. It was scary and dark.
They entered the yard and exited the car. The [respondent] took [ML] to a caravan on bricks in the middle of the junkyard. She told him repeatedly she did not want to have sex with him, indicating her lack of consent. He ignored her so she believed it was pointless and she had to do it. Inside the caravan he kissed her and told her to remove her clothes and lay on her back. She complied and he lay on top of her.
The [respondent] penetrated [ML’s] vagina with his penis. He pushed it in and out as she lay motionless waiting for it to be over. He ejaculated into her vagina without a condom. (Charge 7 – rape)
[ML] got dressed again, and the [respondent] drove her back home.
On another occasion, not long after [ML] had turned 18, the [respondent] picked her up from near her house and again drove her to the junkyard in Sunshine. She told him she did not want to go there or have anything to do with him, and she did not want to have sex with him.
The [respondent] told her it was her fault this was happening and that he would tell [FS] if she did not have sex. She panicked and complied. Inside the caravan the [respondent] kissed her and told her to take her clothes off. The [respondent] penetrated her vagina with his penis. (context/other misconduct)
Partway through he stood her up with her back to him, and told her he was going to have anal sex with her. She said no, she had not done it, and did not want to, indicating her lack of consent. He pushed her to bend over in front of him and inserted his penis into her anus. It hurt her. At the same time he told her she really liked it and wanted it. (Charge 8 – rape)
After [ML] turned 18 she gained more confidence and was able to say no when the [respondent] called to meet. After a few months the [respondent] stopped calling. There was no further offending.

Allegations against ML’s grandfather

After the first trial, on an application by the defence under s 342 of the Criminal Procedure Act, the trial judge granted leave for ML to be cross-examined about previous sexual offending she had alleged against her grandfather. That offending was alleged to have occurred in 2006. Her grandfather was acquitted of all charges after a trial in April 2008 (during the between dates of the kitchen charge on the first indictments). Notwithstanding those acquittals, ML was awarded compensation in connection with the alleged offending by her grandfather.

Stay application before the trial judge

The applicant proceeded with a retrial of the respondent on the remaining charges on the first indictment, namely the extant charge involving ML and the three remaining charges involving FO. The respondent, in written submissions before the trial judge supporting his application for a permanent stay of the former charge, drew attention to what were described as the strongest points against the credit of ML arising from the trials on the first and second indictments, as follows:
(a) The inconsistencies between [ML’s] account of attending the Sunbury house (where [the kitchen charge] was said to have occurred), the evidence of [FS] that she had never attended the house, and the combination of the evidence of [FS] and the informant about the layout of the property.
(b) [ML’s] emphatic account (‘100% sure’) that the offending on charges 4 and 5 on [the second] indictment had occurred:
(i) In the [respondent’s] grey silver Ford LTD. VicRoads records were tendered through the informant, and the informant gave evidence, that the [respondent] had never owned a grey Ford LTD, nor had he owned any Ford cars at the time this offending was said to have occurred. [FS] also gave that evidence in the trial.
(ii) At a time when the [respondent] and his wife were living in Melton. [ML’s] evidence was that [the respondent] had collected her from her home address in his grey Ford LTD. As he was driving her along the Melton Highway at night, she was made to perform oral sex on him (charge 4). She gave evidence that [the respondent] then drove off the highway onto a side road, where he told her to take off her pants and had sex with her. Her evidence was that he did not wear a condom and told her that he wanted her to have his baby. [ML] said had this occurred when she was 17 and prior to her 18th birthday … VicRoads records produced and tendered by the prosecution in the trial demonstrated that [the respondent] was residing at … Westmeadows at the time and did not live at … Melton until 12 October 2012, a date seven months after [ML] says the sexual relationship between her and [the respondent] had stopped.
(c) [ML’s] failure to note that there were professionally installed baby seats in the back of the [Prado], where offending was said to have occurred.[3]
(d) The fact that [ML] invited the [respondent] and [FS] to her 18^th birthday party … despite the fact she alleged she had been raped by [the respondent] the night before.
(e) [ML’s] evidence that after her 16^th birthday, she described her relationship with the [respondent] as ‘friendly’.
(f) … [ML] continued to regularly visit and stay with the [respondent] and his wife, notwithstanding [ML] stating that she continued to be the subject of sexual assault and rape at the hands of [the respondent].
[3]Strictly speaking, this evidence appears to relate to ‘other misconduct’ in vacant paddocks near Altona Meadows baseball park, rather than charged offending. Nothing turns on this.
It was submitted that, in order to properly attack ML’s credit in the trial on the extant charge involving her, the respondent would have ‘no choice’ but to relitigate these points. In doing so, the respondent would be ‘forced’ to reintroduce allegations of offending of which he had already been acquitted. This would tend to undermine the acquittals and place the respondent in an unacceptably unfair position. The respondent’s written submissions stated:
While the decision to split the original indictment concerning [ML] into two trials was not prima facie unfair, the unfairness has now crystallised by virtue of the subsequent acquittal on all of the charges on [the second indictment] and charge 1 on [the first indictment]. Put differently, irrespective of the fairness of structuring the prosecution in the manner that was undertaken, it is now incurably unfair to proceed on the remaining charge.
The respondent accepted that a trial on the extant charge involving ML had already been run without defence counsel having raised this issue, but submitted that, while trial counsel would have had to make difficult forensic decisions, that trial was not unacceptably unfair in the circumstances at the time it was run. Rather, it was submitted that the unfairness had arisen because of the intervening fact of the acquittals on all other charges involving ML.

The applicant submitted before the judge that the retrial of the first indictment charges was an example of a common occurrence. The respondent had suffered no unfairness as a result of the charges involving ML being the subject of different trials, and had presumably benefited from the course that was taken because the path to acquittal of the charges in the second indictment was clearer in the absence of the evidence of the prior offending against ML (and FO). There was no difficulty in retrying the extant charge, because it would be intelligible to a jury without reference to the charges upon which the respondent was acquitted. The jury’s unawareness of those charges and the respondent’s acquittals of them created no unfairness.
The applicant did not accept that defence counsel would realistically take the forensic decision to introduce evidence of allegations other than the charge being tried, and noted that this course was not taken by previous defence counsel when the charges originally on the first indictment were tried to verdict.
The applicant pointed to a range of matters upon which ML could be cross-examined, and identified matters that had been put to her in the trial on the first indictment, based upon the defence calling FS to give evidence undermining ML’s account, including:
(a)that the allegations did not happen, and ML made them up to get compensation;
(b)that ML had never been to the respondent’s mother’s house; and
(c)that the respondent did not pick ML up from Orygen.
In addition, if counsel raised the kitchen charge on a retrial it would be possible, as previous counsel had, to point to the fact that ML had attended the wedding of FS and the respondent and stayed at their home, after the assault alleged, and to question her about the layout of the Sunbury house and what FS was doing during the alleged offending.
The applicant submitted that there was no fundamental defect going to the root of the respondent’s ability to receive a fair trial. The defence would have ample scope to cross-examine ML, in a nearly identical manner to the previous cross-examination by different counsel.
In the hearing of the permanent stay application, most attention was directed at the potential deployment at trial of evidence relating to the kitchen charge. Counsel for the respondent relied on the acquittals on the second indictment charges, however, as underscoring that the jury would not be able to apprehend the entirety of any attack on ML’s credit. Although the judge expressed the view that the argument based on the kitchen charge was stronger because the other charges were never raised at the previous trial, she made it clear that she regarded all matters as live.

Judge’s ruling

The judge listed the matters she took into account, having stated the law in uncontroversial terms. Those matters included the fact that the charge of sexual penetration of a child under 16 is a serious offence and there is a strong public interest in having such a charge resolved. The judge also took account of the fact that there were a number of factual disputes raised in respect of the charges on the second indictment which were likely to have been responsible, at least in part, for the verdicts of acquittal.
The judge said that the respondent was presented with ‘two very poor options’. He could either introduce the other allegations into evidence, with the risk of unfair prejudice which might be incurable by direction, or he could choose not to introduce that material and be left with a less powerful attack on the credit and reliability of ML. The judge noted that, in the first trial on the first indictment, defence counsel had chosen not to introduce credibility issues related to the charges on the second indictment, but she held that this did not mean that those matters were now irrelevant. The judge said that, when considering the areas of attack which were effectively lost to the respondent, she had regard to the matters raised on both indictments. She concluded as follows:
If it were simply a question of the loss of the real opportunity to raise issues regarding the kitchen incident, then the application would be almost completely without substance. But the matters canvassed on the trial of [the second indictment] raise substantial issues with the complainant’s credibility and reliability. At face value her allegations on the present Charge 1 can be tied to particular dates, and she is able to describe a particular vehicle, and location. Yet, in the [the second indictment] trial, it was shown that a vehicle she was certain about did not belong to the [respondent], and that a location and date she gave did not correlate.
The judge noted that there was some benefit to the respondent in the remaining charge being led without the context of earlier sexual interest in ML on the part of the respondent. As a result, ML’s narrative might be less believable. The judge accepted that it would not be possible to cross-examine ML about that, without risking rebuttal evidence being led, but noted that this would not prevent defence counsel from making a submission to the jury based on the state of the evidence ‘in due course’.
The judge concluded that it had been demonstrated that any trial on the remaining charge would be so unfair as to bring the administration of justice into question.

Submissions in this Court

Argument in this Court proceeded upon an acceptance by both parties that the ‘correctness standard’ was applicable to the proposed appeal, as articulated by the High Court in Moore v The King.[4]
[4](2024) 98 ALJR 1119; [2024] HCA 30. See also GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857, 862 [1], 865 [15], 868 [23] (Kiefel CJ, Gageler and Jagot JJ), 881–2 [95]–[96] (Steward J), 892 [161] (Gleeson J); [2023] HCA 32; Ballard v The King [2024] VSCA 26 [42], [46] (Priest JA, Walker JA agreeing at [56], Croucher AJA agreeing at [57]) (‘Ballard’).
In contrast to the argument before the trial judge, the argument in this Court concentrated on the significance of the second indictment. Repeating a submission made to the trial judge, the applicant drew attention to what was described as ‘ample material’ available to defence counsel to afford the respondent a fair, albeit imperfect, trial which it was said would closely resemble the previous trial run by different defence counsel. The matters about which previous counsel had cross-examined ML were set out in the applicant’s written submissions as follows:
a. Family background;
b. How long she stayed with the Respondent and [FS] and how old she said she was when she was staying with them;
c. Her work history and Centrelink benefits history;
d. Her educational background;
e. Relationship history of her family with the Respondent, how it started, the resulting discord and family division, when she last had contact with [FS], … attending [FS’s] wedding;
f. The Respondent’s residential history and which of his houses she has been to;
g. Her grandfather and her sexual allegations against him, the outcome of that trial, Victims of Crime compensation and her awareness of such[;]
h. Inconsistencies between her evidence at trial and her evidence at committal;
i. Her argument with her mother, her self-harming, her resulting hospital admission, where she stayed afterwards;
j. Her Orygen appointments, whether she had a phone, whether she could have gone somewhere else, why she didn’t contact anyone for help;
k. Her description of the Respondent’s mother’s house;
l. Her knowledge of authorities who could have assisted her given previous allegations against [her] grandfather;
m. Conversations she has had with her partner about the Respondent; complaint evidence; whether she has discussed compensation with her partner; and
n. Her knowledge of her sister making allegations of sexual misconduct against another family member.[5]
[5]The respondent also pointed to discrepancies in ML’s account of the offending itself, including by reference to the committal.
The applicant emphasised, in particular, that FS had given evidence that the applicant did not drive ML to and from her Orygen appointments, which contradicted ML’s account of the circumstances of the offending on the extant charge.
The applicant also submitted that, if the forensic choice were made to introduce evidence of other allegations made by ML with a view to impugning her credibility and/or her reliability, this would be accompanied by a clear direction about the limited purpose for which that evidence could be used, and the jury would be told that the respondent had been acquitted of the charges. It was submitted that, if counsel decided only to rely on the kitchen charge and not the other acquittals, this would result in a fair trial which would be identical to the previous trial run by the respondent.
The applicant submitted that the evidence on the charges of which the respondent was acquitted went only to reliability issues and not the credibility of ML. It was said that the evidence showed that ML had made mistakes about surrounding circumstances, contrasting a case where the evidence established incontrovertible dishonesty or proved the offending to have been impossible.
The respondent submitted that, although the decision of the applicant to split the allegations made by ML into two indictments was not unfair of itself, the unfairness had ‘crystallised’ after the subsequent acquittals on all charges on the second indictment and on the kitchen charge. The respondent submitted that the unusual way in which the proceedings had developed had left him with little more than bare denials of ML’s allegation. It was submitted that events had unfairly strengthened the applicant’s case in three ways.
First, it was submitted that the jury would be presented with an artificial narrative, devoid of proper context, in which the alleged offending happened ‘out of the blue’ in March 2010 and nothing else occurred before that time or after it until the complaint made to police on 14 February 2018. The respondent could not question ML’s willingness to travel alone in his vehicle without introducing evidence that she had alleged past offending by him.
Secondly, the respondent could not have recourse to allegations made by ML which had been demonstrated to be false through objective evidence independent of her, thereby closing any lines of credit attack arising from those matters. Argument concentrated on this aspect, relying in part on the reasoning of the trial judge.
Thirdly, the events had created a ‘perilous and unworkable environment’ in which ML needed to be cross-examined. It was submitted that she would no doubt maintain the truth of the other allegations, giving rise to a real risk that she would volunteer evidence that had been the subject of acquittals.
It was submitted that the unfairness was magnified by the use of tendency evidence in the case of the allegations made by FO.
As to the third matter identified above, the applicant confirmed that ML’s evidence would be pre-recorded so that inadmissible or unfairly prejudicial evidence could be deleted before the jury viewed the evidence. This course would appear to minimise this aspect of the prejudice identified by the applicant. It is not necessary to consider that matter further.

Applicable principles

The principles applicable to the decision whether to order a permanent stay of a criminal charge are not in doubt. They were articulated recently by Priest JA in Ballard in the following terms:
As to the principles that guide the grant of a permanent stay, it is well settled that a court should stay criminal proceedings only if, having regard to all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness, or if their continuation would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. In order to justify a permanent stay the circumstances must be exceptional, a permanent stay being a measure of last resort. There must be a fundamental defect going to the root of the trial of such a nature that nothing that the trial judge could do in the conduct of the trial could relieve against its unfair consequences. To obtain a stay, an accused person must demonstrate that the circumstances are such that any trial necessarily will be unfair, so that a conviction would bring the administration of justice into disrepute. The court must have regard to the substantial public interest in having those charged with serious criminal offences brought to trial as well as the fundamental right of an accused to a fair trial and the need to maintain public confidence in the administration of justice. A court’s power to grant a permanent stay stems from the court’s inherent jurisdiction to protect the integrity of its processes where the administration of justice so requires.[6]
[6]Ballard [2024] VSCA 26 [47] (Walker JA agreeing at [56], Croucher AJA agreeing at [57]) (citations omitted).

Consideration

It may readily be accepted that there would be a risk of real prejudice to the respondent if evidence were to be adduced of allegations of sexual offending other than those the subject of the pending trial, even if the jury were told that the respondent had been acquitted of that offending after a trial. It may be assumed, for present purposes, that such prejudice could not satisfactorily be ameliorated by directions to the jury. The respondent submits that the prospect of this prejudice effectively prevents defence counsel from resorting to evidence from the trial on the second indictment or the kitchen charge to attack ML’s credit. This is said to give rise to a dilemma beyond the making of a difficult forensic choice, that is so unfair that the prosecution of the remaining charge involving ML must be permanently stayed.
The central issue in this matter is one of fairness, more particularly whether the respondent is placed in a position that is so unfair that the trial would be an abuse of process. To answer that question, it is necessary to identify what fruits of the trial on the second indictment and the trial of the kitchen charge are said to be effectively denied to defence counsel on a trial of the extant charge involving ML.
First, however, it is important to note that the respondent does not base his argument for a permanent stay on other features of the case, including the facts that:
(a)the charges involving ML have been the subject of six trials, and a seventh is pending;
(b)the charges involving ML were split across two indictments;
(c)the indictment alleging offences when ML was under 16 years also alleges offences against FO when she was aged under 16 years; and
(d)the respondent has been acquitted of nine charges involving ML and only one remains.
In that regard, we note:
(a)in conducting the first six trials, the total time lost through aborted trials was about seven weeks — the trials took place between 6 May 2022 and 8 August 2022;
(b)it has not been suggested that there was any unfairness in splitting the charges across two indictments — the respondent thereby had the advantage of a trial on the alleged offending when ML was over 16 without raising the charges involving ML (or FO) when they were under 16 years;
(c)the respondent reserves his position as to whether, upon a retrial of the four offences of which he was found guilty, the charges involving ML and FO should be tried separately; and
(d)the charge that remains is a very serious one, upon which a jury has previously convicted the respondent in a trial affected by apprehended bias of the judge but not otherwise challenged on the basis of any error or as to its fairness.
When the issues of credit in the previous trials are examined, it becomes clear that the suggested grounds of attack on ML’s credit are not as strong as the respondent contends. Summarising the matters raised by the respondent in [13] above in turn:
(a)FS differed from ML as to whether ML had been to the house in Sunbury, where the kitchen charge offending is said to have occurred, during the relevant period (although FS accepted that ML had visited the house when she and the respondent first moved in). ML’s description of the house also differed from the evidence of FS and the informant.
(b)In respect of charges 4 and 5 on the second indictment, there is a disparity in the evidence about whether the respondent owned or drove a grey Ford LTD, and as to when he and FS lived in Melton (as to which the prosecutor in the trial on the second indictment accepted that ML was mistaken).
(c)ML failed to notice baby or child seats in the back of the Prado vehicle on two occasions. Elsewhere in her evidence she accepted that the Prado was a family vehicle with child seats in it ‘at times’. ML alleged that ‘other misconduct’ after she turned 16 took place in the back of the red Prado with the seats folded back, which would seem not to have been possible on the evidence of FS that two of the child seats were ‘professionally installed’. This was a discrepancy between the evidence of ML and that of FS.
(d)ML invited the respondent and FS to her 18^th birthday party, despite saying that she had been raped by him the night before (charge 7 on the second indictment). This evidence could only be led by introducing the allegation of that rape. It does not seem that this apparent incongruity was put directly to ML at trial, but it seems consistent with ML’s acceptance that relations were ‘friendly’.
(e)ML described her relationship with the respondent as ‘friendly’ after her 16^th birthday. This evidence might be able to be put to ML without necessarily introducing evidence of the other charges. But the fact that ML maintained this position despite alleging ongoing sexual assaults could not be explored without the jury learning of those allegations.
(f)At committal, ML said that she visited the home of the respondent and FS as often after the offending stopped as she had when it was ongoing.
It may be accepted that discrepancies and inconsistencies such as these contributed to the jury not accepting the evidence of ML in relation to the charges on which the respondent was acquitted. It is not said, however, that ML made any telling admissions, which defence counsel would now want to exploit in an attack on her credit, or that it was shown incontrovertibly that she was a dishonest witness, rather than one who had made mistakes in her evidence. At its highest, ML has been shown to be wrong in recounting certain details of her account or her evidence has been at odds with that of other witnesses.
The matters in question that went directly to ML’s accounts of the actual offending (or, in one case, other misconduct) are when ML had been to the Sunbury house (where the conduct the subject of the kitchen charge was said to have occurred), whether the respondent owned a Ford, or a Ford LTD (where the conduct the subject of charges 4 and 5 of the second indictment was alleged to have been committed), and the child seat issue in respect of the red Prado, referred to above (which relates to other misconduct relied on in the trial of the second indictment). In her reasons for granting the permanent stay, the judge referred to the fact that, in the trial on the second indictment, ‘it was shown that a vehicle [ML] was certain about did not belong to the [respondent], and that a location and date she gave did not correlate’. The vehicle in question was the Ford LTD, and the location and dates were in respect of the residence of FS and the respondent at the time of the offending alleged to have occurred in that vehicle.

Before the trial judge, the respondent relied on what was said to be similar if not identical unfairness in the cases of Brown v The Queen (‘Brown’)[7] and Parsons v Director of Public Prosecutions (‘Parsons’).[8]
[7][2020] VSCA 26.
[8][2020] VCC 1704.
In Brown, this Court upheld an appeal against a conviction for recklessly causing injury on the basis of fresh evidence revealing that the complainant had given a conflicting account of the alleged assault. The jury had acquitted the accused of charges relating to two other alleged assaults of the complainant, one on a different day about a year earlier, and one immediately after the assault of which he was convicted. There had been inconsistencies in the complainant’s evidence in respect of the earlier assault. There was photographic evidence that the jury could have relied on to corroborate her account of the assault of which the accused was convicted.
Having upheld the appeal against conviction, the Court had a discretion as to whether to order a new trial on the remaining charge or enter a judgment of acquittal. The Court observed that an appellate court should ordinarily order a new trial if there is evidence to support the charge, unless the interests of justice require an acquittal.[9] The Court set out a non-exhaustive list of factors relevant to the exercise of the discretion. They included the seriousness of the alleged crime, the strength of the prosecution case, whether a new trial would impermissibly allow the prosecution to present a stronger or different case, whether it would be unduly oppressive to put the accused to the expense and worry of a further trial and whether a significant part of the sentence had already been served.[10] It is plain that the question before the Court in this context was different to that raised by an application for a permanent stay. In particular, the question was not whether the circumstances were exceptional, so as to require an acquittal as a measure of last resort.[11] However, it is relevant that the Court took account of ‘significant forensic challenges’ to the applicant in that case.[12]
[9]Brown [2020] VSCA 26 [21] (Kyrou, Niall and Emerton JJA), citing Spies v The Queen (2000) 201 CLR 603.
[10]Brown [2020] VSCA 26 [24] (Kyrou, Niall and Emerton JJA).
[11]Ballard [2024] VSCA 26 [47] (Priest JA).
[12]Brown [2020] VSCA 26 [28] (Kyrou, Niall and Emerton JJA).
In particular, the applicant could expose inconsistencies or infirmities in the complainant’s account in relation to the alleged assaults of which he was acquitted, only by putting the facts surrounding those matters to the jury.[13] One of those alleged offences was said to have been committed immediately after the offending in the remaining charge. The Court concluded that a retrial on the remaining charge would be unfair, and entered a judgment of acquittal.
[13]Ibid [33].
In Parsons, a jury failed to reach a verdict on a course of conduct charge of sexual penetration of a child under 16 but acquitted the accused of five other charges involving the same child on two different occasions. The accused sought a permanent stay on the basis that, in order to adequately test the credibility of the complainant, he would be forced to relitigate the evidence the subject of the charges in respect of which he had been acquitted. Some of the charges of which the accused was acquitted involved an alleged injury inflicted on the complainant’s vagina. There was evidence that the complainant had at one stage retracted that complaint, and her mother told police that the complainant had confessed to making up part of that allegation, and that she had looked at the complainant’s vagina and it was normal. The complainant had said at committal that she had told a few lies, including about the use of a knife in respect of the alleged injury. There was also a social worker’s note to the effect that the complainant had said that the abuse stopped when she was about six years old, which the complainant disputed.
The trial judge in Parsons accepted that, in order properly to defend the course of conduct charge, which extended over 12 years, the accused would have to seek to reintroduce the evidence regarding the charges of which he was acquitted, by cross-examining the complainant on those matters.[14] The judge held that this would undermine the ‘principle of incontrovertibility’ of acquittals, such that a retrial would be an abuse of process, unfair and oppressive.[15] The risk of unfair prejudice was said to be more acute than in Brown, because the charges of causing injury were particularly grave, and were more serious and disturbing than those in the course of conduct charge.[16] The judge found that placing the accused in the position of making the choice whether to reintroduce the evidence was itself oppressive.[17]
[14]Parsons [2020] VCC 1704 [76] (Judge Riddell).
[15]Ibid [85]. The judge cited the judgments in R v Carroll (2002) 213 CLR 635, in which it was held that a perjury indictment was an abuse of process because the charge relied on evidence given by the accused when on trial for murder, of which charge he had been acquitted.
[16]Parsons [2020] VCC 1704 [100] (Judge Riddell).
[17]Ibid [108].
These cases confirm that it may be oppressive to an accused to conduct a retrial in respect of a charge if reliance by the accused on evidence adverse to the complainant’s credibility, given in respect of other charges of which the accused was acquitted, would carry with it the unfair and incurable prejudice of drawing those charges to the jury’s attention. But they also show that each case depends on its facts. In particular, the question of unfair or incurable prejudice is fact-specific.
In Brown, the complainant had given conflicting accounts of the events that gave rise to the charges of which the accused was acquitted. One of those events immediately followed after the conduct of which he was convicted, in respect of which a new trial was under contemplation. There was photographic evidence in respect of the outstanding charge, which the jury might more readily accept without being aware of the inconsistencies in the complainant’s evidence of other events. In Parsons, the complainant had made significant admissions, including as to having told lies, as well as giving inconsistent accounts, as to the alleged offending of which the accused was acquitted. The outstanding charge was a course of conduct charge which necessarily lacked specificity, making it critical to challenge the complainant’s credit by reference to specific events that she had alleged in relation to the other charges.
The position here is quite different. Here, the evidence on the other charges does not involve any admission on the part of ML that she had told lies, or any conflicting accounts of the alleged offending. It includes matters on which ML’s evidence was contradicted, or her own conduct or her explanations for it were arguably inconsistent with the alleged offending having occurred. The previous jury evidently considered that such matters cast sufficient doubt on her evidence to acquit the respondent of the charges in question. But this circumstance of itself might be thought to have little probative value to another jury evaluating ML’s credibility.
Certainly in the case of the kitchen charge, the jury’s doubt as to that charge did not preclude them from convicting the respondent on the sexual penetration charge involving ML which remains extant. Accepting that the matter is to be looked at afresh by reference to the circumstances as they now exist, it is none the less evident that counsel in the previous trial was not sufficiently troubled, by being put in that position, to have raised any point about unfairness. At that stage, there had been no trial on the second indictment. If anything, the fact that there have now been acquittals on the charges in that indictment serves to lessen the prejudice defence counsel would risk by raising these matters in a later trial.
The clearest contradiction of ML’s evidence concerned the highway upon which she said one of the offences in the second indictment occurred and the nearby suburb where an ensuing offence was said to have been committed. It was accepted at trial that ML was wrong in this evidence. She had been incorrect about the suburb where the respondent and FS were then living, and about the nearby highway of the same name. But the misidentification of a specific road or suburb as the location of an offence, especially one alleged to have been committed some ten years earlier, is not necessarily critical to the credit of a witness.
The evidence given by ML that offending took place in a Ford LTD, or other Ford vehicle, was contradicted by VicRoads records showing that the respondent did not own such a vehicle during the relevant period. ML said she was ‘100 per cent sure’ that the respondent drove a grey Ford, even if it was not an LTD. It would obviously be helpful to defence counsel to be able to expose this evidence to the jury. It is less obvious, however, that it points to a want of credibility, as distinct from reliability, on the part of ML. Again, on one view, the make of a vehicle is a detail that a generally reliable person could easily get wrong, especially a person recalling events some ten years earlier when they were a child.
The evidence regarding baby or child seats in the back of the Prado vehicle involves an apparent discrepancy between the evidence of ML and that of FS. ML alleged that ‘other misconduct’ after she turned 16 took place in the back of the red Prado with the seats folded back. That indicates that there were no child seats installed, as the seats could presumably not have been folded back if there were. FS gave evidence that two of the child seats were ‘professionally installed’. But ML accepted that the Prado was a family vehicle with child seats in it ‘at times’. The effect of her evidence is that the seats were not always there. Any discrepancy rests on an implication that, having been professionally installed, the seats could not be removed and reinstalled by the respondent from time to time. This matter was not explored in evidence. In the circumstances, the suggested discrepancy is not obvious.[18]
[18]This conclusion applies equally to anything that could be made of ML’s failure to recall whether child seats were installed on the two occasions referred to at [42](c) above.
In short, the evidence on the acquitted charges to which the respondent might have resort on a further trial of the extant charge involving ML, whether considered individually or as a whole, is not compelling as to her lack of credibility. The loss of these potential areas of cross-examination, due to the unacceptable risk of prejudice as a result of the jury learning of the other charges, is not so great that there cannot be a fair trial in this matter. Defence counsel instead faces a forensic decision weighing the potential value of the evidence in diminishing the credit of ML against the potential prejudice of informing the jury of the other charges (albeit informing them also of the acquittals on those charges). The applicant has sustained little, if any, forensic disadvantage by having the charges on the second indictment heard separately from the charge the remains.
Moreover, as the applicant submitted, and in contrast to Parsons in particular but also Brown, there are avenues of attacking ML’s credit other than by reference to the charges that were the subject of the acquittals. They include ML’s description of the respondent’s mother’s house in Braybrook and her previous receipt of criminal compensation after making allegations against her grandfather. There were also differences between the evidence of ML and FS about family relations generally and ML’s relationship with the respondent and FS, in particular. That relationship was alleged by defence counsel to have been affected by FS having supported their grandfather when ML made allegations against him, supplying a motive for ML to make accusations against the respondent and making it less likely that ML spent time with him and FS. Evidence that ML had denied this and said that relations with the respondent were ‘friendly’ could plainly be used to attack ML’s credit.
As to the subject charge itself, it is true that the respondent would not be able to put to ML that she would not have got into his car, in light of the alleged past offending, without drawing the jury’s attention to those allegations. Equally, however, as the judge recognised, it would be possible without cross-examining ML on the point to suggest to the jury that the account by which the respondent started a conversation with ML ‘out of the blue’ about the two of them having sex was unbelievable.
In our opinion, this was not the exceptional case where the forensic choice faced by defence counsel would be so unfair as to make it an abuse of process for a trial on the remaining charge to proceed, or to make such a trial incurably unfair. The case is more like Ballard itself, where the potential benefit of invoking the evidence on the charges of which the accused was acquitted was not self-evident, there was other scope for challenging the complainant’s credit, and the acquittals on charges dependent on identification evidence were said not to bear unequivocally on the complainant’s credibility and truthfulness.[19]
[19]Ballard [2024] VSCA 26 [52], [54] (Priest JA, Walker JA agreeing at [56], Croucher AJA agreeing at [57]).
In respect of the kitchen charge, there is nothing unusual in a retrial of a charge in circumstances where the accused has previously been acquitted of other charges on the original indictment. As in Ballard, if counsel did make the forensic choice to explore such matters, they would be able to rely, in addition, on the fact of the acquittals.[20] In terms applicable to the present case, Priest JA said:
Accepting for the sake of argument that the applicant might suffer some prejudice from having to relitigate much of the evidence from the first trial, that alone is not a feature that would justify the grant of a permanent stay. On the assumption that there is evidence properly capable of supporting the charges in an indictment, it is difficult to imagine circumstances in which the mere fact that the parties on a retrial will be required once more to traverse evidence and issues agitated at an earlier trial could ever constitute abuse of process amenable to a permanent stay. Retrials are commonly conducted on charges upon which a jury in an earlier trial could not agree, and on charges upon which jury verdicts have been set aside following a successful appeal.[21]
[20]Ibid [51]–[52].
[21]Ibid [50] (Walker JA agreeing at [56], Croucher AJA agreeing at [57]).

Conclusion

Leave to appeal should be granted. The appeal should be allowed and the permanent stay of charge 1 on the first indictment, as amended (sexual penetration of ML, a child under 16), should be set aside. The respondent should have a certificate under s 15B of the Appeal Costs Act 1998.
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[2024] VSCA 241

17 October 2024