Director of Public Prosecutions v Jamison (a pseudonym)
[2022] VCC 857
•26 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| WILLIAM JAMISON (a pseudonym) | Applicant |
| v | |
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 February 2022 | |
DATE OF RULING: | 26 May 2022 | |
CASE MAY BE CITED AS: | DPP v Jamison (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 857 | |
RULING
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Subject:CRIMINAL LAW
Catchwords: Indecent assault – application for permanent stay of proceedings – historic offending – unavailability of witnesses – unavailability of documents - delay
Legislation Cited: ss 44(1), 68(3A), 68(4) Crimes Act 1958 (Vic) - Crimes (Amendment) Act 1967 (Vic) - Crimes (Sexual Offences) Act 1980 (Vic) – ss 32, 39 Jury Directions Act 2015 (Vic) – ss 21, 25 Charter of Human Rights and Responsibilities Act 2006 (Vic)
Cases Cited:Aydin v R (2010) 28 VR 588 - Bauer (a pseudonym) v The Queen [2016] VSCA 55 - Clark v R [2016] VSCA 96 - Crampton v R [2000] HCA 60 - CT v The Queen [2014] NZSC 155 - Green (a pseudonym) v The Queen [2017] VSCA 277 - Hermanus v The Queen (2015) 44 VR 335 - Jago v The District Court of New South Wales (1989) 168 CLR 23 - Jones (a pseudonym) v The Queen [2017] VSCA 111 - Kenny (a pseudonym) v The Queen [2018] VSCA 220 - Lucciano (a pseudonym) v The Queen [2021] VSCA 12 - McGee (a pseudonym) v The Queen [2020] VSCA 146 - Morton (a pseudonym) v The Queen [2020] VSCA 49 - The Queen v FJL [2014] VSCA 57
Ruling: Permanent stay application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | B. Franjic | Tony Hargreaves & Partners |
| For the Respondent | R. Pirrie | Office of Public Prosecutions |
HER HONOUR:
Introduction
1William Jamison,[1] (“the Applicant”) is charged with five charges of indecent assault and one charge of possession of child abuse material (charge 6). Charges 1, 2, 3 and 5 were alleged to have been committed between 1975 and 1981 and are contrary to s 68(3A) of the Crimes Act 1958 as amended by the Crimes (Amendment) Act 1967. Charge 4 is alleged to have been committed in 1983 and is contrary to s 44(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980. Charge 6 is alleged to have been committed on 22 October 2019.
[1] A pseudonym.
2The Applicant has applied for a permanent stay of proceedings relating to charges 1, 2, 3, 4 and 5. Charge 6 is not subject to this application.
Background facts
3The Applicant was born in 1940 and was employed as principal of a Christian College in Central Victoria during the 1970s.
4The charges with which this application is concerned are alleged to have been committed against two separate complainants.
5Charges 1 through to 4 concern Edward Myers (“EM”).[2] These charges are alleged to have occurred between 1975 and 1983, now some 39 to 47 years ago. EM is now in his late 50s. EM attended a Christian College in Central Victoria. It was here that he met the Applicant.
[2] A pseudonym.
6Charge 5 concerns Brian Randall (“BR”).[3] This charge is alleged to have occurred between March and December of 1976 and is now almost 46 years old. BR is now in his 60s. BR attended the same Central Victorian Christian College, it was also here that he met the Applicant.
[3] A pseudonym.
Charge 1 – indecent assault – Edward Myers
7Sometime in 1975, near to his 13th birthday EM alleges that the Applicant took him out for dinner at a small restaurant. This restaurant is now closed and has since been converted to a house.
8The Applicant picked EM up from his home and drove him to the restaurant. EM was wearing his school uniform. Whilst at dinner the Applicant is alleged to have consumed a considerable amount of wine and repeatedly unbuttoned and rebuttoned his shirt, as well as rubbed his exposed chest.
9During the drive back to EM’s home, whilst driving the Applicant is alleged to have exposed his penis and commenced to masturbate. The Applicant is then alleged to have touched EM on the thigh with his hand. The Applicant asked EM to assist him by touching his penis. EM refused. The Applicant did not ejaculate.
Charge 2 – indecent assault – Edward Myers
10In about 1977, when he was about 14 years old and in year 9, EM recalls being in a religious instruction class. He was clowning around whilst wearing a netball skirt. The class teacher, Sister Jones[4], sent EM to the Applicant’s office. EM attended the office. The Applicant stood up and walked around his desk to EM and stood behind him. The Applicant then pushed his crotch into EM’s backside and gyrated his crutch. Whilst doing this the Applicant reached around with his right hand and grabbed and fondled EM’s genitals over his clothing. EM fought free from the Applicant, pushed him away and left the office.
[4] A pseudonym.
Uncharged conduct – Edward Myers
11EM alleges that the Applicant offended against him in a similar manner on approximately 12 occasions during his time as a student at the school. This estimate was clouded by his spending time with the Applicant in Melbourne in later years. The Applicant would approach EM from behind and grind his crotch in to EM’s backside. He would then reach around and fondle EM’s genitals over his clothing.
12On other occasions EM recalls being grabbed on the genitals by the Applicant whilst playing a game called “scrag ’em”. This game was played on the school oval with numerous other classes.
13There was also another incident when EM was around 16 to 17 years old. He was approached by the Applicant while walking towards the school hall. After a brief exchange the Applicant touched EM in the same manner as in the office.
14There are no witnesses to any of these alleged uncharged acts.
15The Applicant left the school in the late 70s. EM remained at the Christian College and went on to complete year 12 in 1980. During this year the Applicant organised for EM to do a week of work experience at a sound recording studio in Melbourne. EM stayed at the Applicant’s home in Kew during this time. Whilst EM was staying in Kew the Applicant made numerous approaches to him, the subject of the remaining charged and uncharged conduct.
Charge 3 – indecent assault – Edward Myers
16On one occasion, whilst at the Kew home, the Applicant persuaded EM to join him in the sauna. EM sat opposite to the Applicant. The Applicant then started to masturbate and asked EM to touch him. EM refused and left the sauna. He showered and returned a short time later. The Applicant continued to masturbate in the presence of EM and then left to shower.
Other evidence
17Later in about February 1983 EM was about 20 years old. He was offered a job in Preston. The Applicant invited him to stay at his house in Kew. EM moved in and lived in the front bedroom for about 12 months. At this time another older male George Solomon[5] also lived at the house. During this time the Applicant made several sexual advances toward EM who pushed him away each time.
[5] A pseudonym.
Charge 4 – indecent assault – Edward Myers
18The Applicant became a partner at a restaurant in his home-town in Central Victoria. EM travelled home there on weekends and worked in the restaurant as a waiter. One afternoon in 1983 EM had finished work and was in the car park. The Applicant approached him from behind and grabbed his genitals and gyrated against his buttocks. EM moved out of the Applicant’s home not long after this incident.
Complaint
19EM told his wife of the allegations prior to their wedding in 1989. In about 2002 he also spoke to his mother about the allegations. When he was approximately 40 years old he spoke to a police officer, however he decided not to pursue the allegations at that time.
20On 12 March 2019 EM reported the matters to police.
Uncharged conduct – Brian Randall
21The Applicant commenced at a Community College in Central Victoria when BR was around 14 years old and in form 3. Initially BR did not have much to do with the Applicant but in form 4 the Applicant became his home group teacher and he had a lot more to do with him from that point.
22In around March 1976, when BR was aged 15 years the Applicant invited him and other boys to his property to use the pool, sauna and tennis court. BR and his friends including Jack Dunn,[6] Hugo Bamford[7] and his cousin Peter Randall[8] regularly attended the Applicant’s property to use the facilities. The Applicant initially supplied soft drinks for the boys, that progressed to the Applicant offering and supplying beer. The Applicant would drink white wine. At times the Applicant would talk to the boys about sex.
[6] A pseudonym.
[7] A pseudonym.
[8] A pseudonym.
23BR alleges that he and the boys would attend the Applicant’s home at least once or twice a week. Whilst there the Applicant would hug him and touch and rub his backside over clothing with his hands. BR would always push the Applicant away. The Applicant would apologise and say he had a bit to drink. BR says that the Applicant would constantly do the same thing to other boys including Jack Dunn. He also says that the Applicant tried to do the same thing to his cousin Peter, however Peter stood up to him and told him never to touch him.
24Peter Randall made a statement in relation to the attendances at the Applicant’s home. In that statement he said that he did not remember a lot about the times he went there but it would only have been a couple of times and was not for very long. From his memory the attendances were quite normal, he did not recall drinking alcohol whilst there and he could not recall if other people were there or who they were. Peter Randall also said that he never saw the Applicant acting inappropriately.
Charge 5 – indecent assault – Brian Randall
25Towards the end of 1976, BR was suffering a calf injury that required treatment in Melbourne. The Applicant organised with BR’s mother to drive BR to Melbourne, stay overnight and to see the doctor the following day. They stayed at a motel in East Melbourne.
26Whilst at the motel, BR alleges that the Applicant came over to him and put his arms around him to give him a cuddle and then reached around and put his hands on BR’s buttocks, rubbing them over his clothing. BR said this did not last long because he pushed the Applicant away and told him not to be stupid and that he was going to sleep on the couch. The next day BR attended the hospital and saw the surgeon.
27BR alleges this type of behaviour continued until BR left the Central Victorian town in 1978.
Complaint
28In about 1979, BR told his sister about part of what the Applicant had done to him and his friends. He also says he told her about what occurred in the motel room. After this conversation, BR says he and his sister spoke about the allegations about seven or eight years later.
29According to BR’s sister, BR first spoke to her about the alleged offending in 1999. She was able to identify the year by reference to the age of her daughter at the time of the conversation. In this conversation BR told her about the incident at the motel. He told her the Applicant had tried touching him and that he brushed him off and told him to go away. BR’s sister says they also spoke about the allegations in 2011 and again in January 2019.
30The police contacted BR and he made his statement on 17 October 2019.
Incriminating conduct.
31In about 1988 BR and Jack Dunn visited the Applicant at his home in Croydon. George Solomon, who was also a former student from the Christian College in Central Victoria was also at the house. When BR arrived the Applicant greeted him by hugging him and touching him on the buttocks. BR said words to the effect of “cut it out not the same old, nothing’s changed”, the Applicant replied “oh I’m sorry I’ve had a few drinks, I get tiddly I can’t help it, I shouldn’t have had the extra wine..”.
The Applicant’s record of interview
32The Applicant was interviewed by police on 22 October 2019. It is clear from the interview that the Applicant’s memory of the relevant period has significantly eroded given the passage of time. He said that he remembered both EM and BR. He repeatedly said he had ‘no recollection’ of any of the alleged offences.
33He broadly denied any sexual occurrences involving EM. He remembered going out for dinner with EM in around 1978. He believed they attended a restaurant which was an old house with a couple of windows at the front. The Applicant did not recall anything out of the ordinary had occurred on that occasion.
34The Applicant said he had no recollection of anything sexual ever happening with BR. He recalled taking him to the Epworth hospital in Melbourne but could not recall the circumstances in any detail. He could not recall any sexual assault occurring in the motel room.
Principles applicable to the grant of a permanent stay
35The relevant case law was extensively summarised in the defence submissions, as acknowledged by the prosecution. There does not appear to be any dispute between the parties as to the fundamental principles that govern such applications.
36The decision as to whether or not to grant a permanent stay is discretionary.[9] The decision depends on a judicial assessment as to whether the risk of prejudice is such as to render a trial unfair. This requires an evaluative judgment based on all the relevant circumstances.[10] It is a matter of judgment that is informed by experience.[11]
[9] Hermanus v The Queen (2015) 44 VR 335, [38] (‘Hermanus’).
[10] CT v The Queen [2014] NZSC 155, [19] (‘CT’).
[11] McGee (a pseudonym) v The Queen [2020] VSCA 146, [136] (‘McGee’).
37The onus is on the Applicant/Accused to demonstrate the existence of facts which would enliven the discretion, and to satisfy the court that a permanent stay is the only remedy available to prevent an abuse of process.[12] The Applicant/Accused must demonstrate the probability, and not the mere possibility, that the refusal to grant a stay would result in an unacceptably unfair trial.[13] In other words, that a continuation of the proceedings would, not merely could, involve unacceptable injustice or unfairness.[14]
[12] Hermanus (n 1) [38].
[13] Ibid [40]; Morton (a pseudonym) v The Queen [2020] VSCA 49, [95] (‘Morton’).
[14] Clark v R [2016] VSCA 96, [16], [19] (‘Clark’).
38A permanent stay will only be granted in circumstances that are rare or exceptional.[15] ‘There must be a fundamental defect which goes to the root of the trial of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.’ It must be shown that the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to itself constitute an abuse of process.[16]
[15] Hermanus (n 1) [38]; Jago v The District Court of New South Wales (1989) 168 CLR 23, 34 (‘Jago’).
[16] Clarke (n 6) [16], [19].
39In deciding whether to grant a permanent stay, the relative seriousness of the charges is also a relevant consideration.[17]
[17] Lucciano (a pseudonym) v The Queen [2021] VSCA 12, [48] (‘Lucciano’).
40The categories of unfairness which amount to an abuse of process are not closed and the nature and manner in which a prosecution may be unfair or oppressive as an abuse of process is not confined.
41In cases of delay, delay alone is not a sufficient basis for granting a permanent stay[18], though it may operate with other factors to deprive the accused of a fair trial. In the case of Morton it was the combined impact of the various factors going to presumptive and specific prejudice, rather than any individual factor, that informed the Court of Appeal’s decision to allow the appeal in that case.[19]
[18] Aydin v R (2010) 28 VR 588 (‘Aydin’).
[19] Ibid [131].
42I agree with the prosecution submission that this trial should not be permanently stayed merely because the effluxion of time means that witnesses are not available or the Applicant is at a forensic disadvantage in some way. If that were the law then many historical offences could not be prosecuted and it would operate as a de facto limitation of action. The case law clearly demand more than this. As Priest J stated in Bauer, ‘the law contemplates that … even in cases of very long delay, it remains possible for an accused to receive a fair trial which is not unacceptably unfair, despite the trial being attended to some extent by unfairness, prejudice or forensic disadvantage.’[20]
[20] Bauer (a pseudonym) v The Queen [2016] VSCA 55, [95] (‘Bauer’).
43In Hermanus, Priest JA set out a summary of the principles that govern whether to grant a stay in the case of long delays at paragraph [40] of the decision. As already stated, the exercise of the power must be exceptional; there must be a fundamental defect going to the root of the trial; relevant circumstances to consider include the length of delay, the reasons for it, proven or likely prejudice to the Accused (Applicant), and the public interest in the disposition of serious offences and in the conviction of those guilty of crime; it is the probability of unacceptable unfairness – rather than the possibility – that is critical; a trial will not necessarily be unacceptably unfair because the jury is called upon to determine issues of fact on less than all the relevant material which might bear upon the issues thrown up for determination; and the trial judge may avoid obstacles to a fair trial by evidentiary rulings and directions to the jury designed to counteract any prejudice that the accused might otherwise suffer.
44Many of the principles outlined in Hermanus were further canvassed by the Supreme Court of New Zealand in the case of CT, which has been cited with approval in Victorian Courts.[21] The Court there confirmed that delay in and of itself does not erase criminal liability, nor is an explanation for the delay a ground for a stay, at least in the case of serious crime. A judge should grant a stay if persuaded that, despite the operation of the burden and standard of proof and the steps which a trial judge must take to mitigate the risk of prejudice, there cannot be a fair trial. Such a determination requires a judicial evaluation based on assessments of the circumstances as they are at the time of the trial and of the likely prejudicial effects of the delay. The Court further stated[22]:
(e)Material to such assessments will be the availability (or more commonly, the unavailability) of defence witnesses, relevant documents and independent evidence of whereabouts and activity, the general impact of time on memory, any deterioration in the defendants physical or mental health (with consequent impact on ability to mount a defence), indeterminacy as to the specifics of the alleged offending (particularly where an isolated act of offending is in issue) and the apparent strength or weakness of the Crown case.
(f) While a defendant facing serious charges will usually have to be able to point to tangible delay-related prejudice, a combination of a very lengthy delay and a weak Crown case may justify a stay. As the Court stated elsewhere in its decision, where the crown case is weak, the risk of prejudice is likely to be more substantial.
[21] See Bauer (a pseudonym) v The Queen [2016] VSCA 55 at [94].
[22] CT (n 2) [32].
45Whether the claimed forensic disadvantage concerns the loss of evidence or the loss of opportunity to obtain evidence the task of the Court is to assess ‘whether the lost opportunity to adduce exculpatory evidence, or to impugn evidence called by the prosecution, is such as to meet the high hurdle set by the test of whether the trial is rendered unacceptably unfair’.[23] This obviously requires a careful and thorough assessment of the circumstances in the case, as illustrated by the recent stay application cases helpfully summarised in the defence submissions. In the case of Jones[24] the loss of evidence was considered more a lost opportunity and it was a matter of complete speculation as to what the witnesses may or may not have said. In the case of Kenny[25] it was not considered significant that police had not spoken to a number of family members of the complainants because none were in the position where it would have been inconceivable that they were unaware of the relevant circumstances of the offending. Both of these cases involved very serious penetrative offending. This is to be contrasted to the cases of Green[26] where, given the facts of that case, the absence of the complainants mother and the accused father were significant, particularly in light of the fact that the complainant had some issues with her memory, or the case of FJL[27] where the loss of witnesses were those who were physically proximate to the offending and where the evidence had the potential to go well beyond contextual circumstantial evidence.
[23] Morton (n 11) [102]-[103].
[24] Jones (a pseudonym) v The Queen [2017] VSCA 111 (‘Jones’).
[25] Kenny (a pseudonym) v The Queen [2018] VSCA 220 (‘Kenny’).
[26] Green (a pseudonym) v The Queen [2017] VSCA 277 (‘Green’).
[27] The Queen v FJL [2014] VSCA 57 (‘FJL’).
46In cases of very long delay, a trial will almost invariably be compromised at least to some degree, the question is whether the accused’s trial will be rendered unacceptably unfair.
Applicant’s submissions
47Counsel for the Applicant submits that there are two overriding features in this case that form the foundation for why a permanent stay should be granted. These are the length of delay and the lack of seriousness of the charges.
48The length of delay in relation to these charges is between 39 to 47 years. The Applicant contends that this is extreme and exceptional. The presumptive prejudice that results from a delay of this length is very real.
49The Applicant conceded that all sexual offending is inherently serious. However, within that there is a range of seriousness that is relative to the circumstances of the offending. On the worst end one could imagine offending against a very young child who was penetrated orally or otherwise by a much older adult that was sustained, violent and aggressive. On the other end of the scale is offending similar to that now before the Court.
50As to the seriousness of the charges the Applicant made the following points;
(a) Charge 1 involves an allegation of touching on the thigh over clothing whilst the Applicant was allegedly masturbating when EM was aged 12 to 13 years. This offending was not sustained, it was over clothing and involved a breach of trust given the relationship between the Applicant and EM. The offending as whole was described by the applicant as being ‘not a serious example; of the offence of indecent assault.
(b) Charge 2 was conceded by the Applicant to be the most serious charge on the Indictment as it occurred at the school and involved a breach of trust. Even so the Applicant argued it could not be categorised toward the upper end of seriousness. This was because EM was aged 14 to 15 years at the time, the offending was of brief duration and again was over clothing.
(c) Charge 3 was submitted by the Applicant to be foredoomed to fail as there was no offence of indecent assault disclosed. At the time of this alleged offending EM was 17 to 18 years old. The allegations involved one male, the Applicant masturbating in front of another EM and inviting him to touch his penis. The invitation is refused. The Applicant contends if an offence is disclosed it is at the low end of the scale.
(d) Charge 4 was described by the Applicant’s Counsel in oral argument as ‘difficult to think of an example of the offence of indecent assault that is less serious than that’. This is because it involved brief touching on the genitals on the outside of clothing, in a public place when EM was aged 20 to 21 years. Although the Applicant had an interest in the business in which EM worked there was no evidence he had any authority over EM and so there was no breach of trust involved.
(e) Charge 5 was again of short duration, involving the Applicant touching BR over clothes who was 16 or 17 years old. Unlike any of the other charges BR was under the direct supervision of the Applicant which it was conceded increases the seriousness of the offending. Notwithstanding, this fact it was contended that this was not the worst example of the offence.
51In these circumstances it was argued that in combination, the exceptional delay and the lack of seriousness of the charges was an extremely important backdrop against which other presumptive and specific prejudices must be assessed.
52The Applicant pointed to other factors which were said to deprive him of crucial contextual evidence which in combination may have enabled him to raise a reasonable doubt of crucial events and circumstances. The Applicant pointed to the following significant matters:
(a) The memories of witnesses have been significantly adversely affected by the passage of time. Such delay was also said to erode the assessment of the witness’ evidence. There is an absence of detail that leaves the Applicant in a position where he can do little more than make bare denials. The extreme delay also substantially dilutes the evidence of exculpatory witnesses such as Peter Randall and Sister Jones.
(b) A number of potentially important witnesses are deceased or unidentified. These witnesses include Mr Myers’ father (now deceased), Mr Randall’s mother (now deceased), the unidentified boarders who lived at the Applicant’s house and Sister Rooney[28] (now deceased) who worked very closely with the Applicant as the vice principal of the college.
(c) The Applicant also argued that the unavailability of records and other independent evidence impairs the Applicant’s ability to undermine the evidence of EM and BR. Records that are missing include, floor plans and photos of the school during 1977, college staff records, college timetables, records from the small restaurant that is now gone and records that could confirm the name of the East Melbourne motel and the date that the Applicant and BR stayed there.
[28] A pseudonym.
53In addition, the Applicant points to several specific prejudices which stem from the extreme delay. These include:
(a) The particularly poor memory of EM. EM’s memory was tested by Counsel for the Applicant at the Committal Hearing. In her submissions, Counsel enumerated many of the details forgotten by EM. Such was the state of his memory that the Applicant would effectively be deprived of any meaningful way to test EM’s account of the offences and the surrounding circumstances.
(b) The unidentified office and admin staff who were said to be in close proximity of the Applicant’s office during charge 2. The absence of these witnesses significantly prejudices the Applicant’s ability to undermine EM’s account of this allegation. The unidentified students who were involved in games of “scrag ‘em” of the school oval. Even though this is an uncharged act it involves such outrageous and brazen behaviour it would be inconceivable that someone would not have seen this, particularly in light of EM’s claim that the Applicant was known for this type of behaviour. The Applicant also argued that when offending happens in front of other people you would expect evidence from them and this evidence would be significant. Their absence goes beyond speculative and presumed prejudice to an actual significant and specific prejudice.
(c) The absence of medical records of BR were argued to be so important that their absence creates a specific and significant form of forensic disadvantage. Charge 5 alleges that the Applicant indecently assaulted a person under the age of 16. There are no records to confirm the date of this trip to Melbourne. The prosecution were able to get a nursing history of the BR’s cousin which gave two potential dates that the offending could have occurred. One of those was when the accused was 15 and the other when he was 16. The applicant argued that the prosecution must therefore prove that this incident occurred before the BR’s 16th birthday. The records are extremely important given the uncertainty and importance of the timing of this alleged incident. The records could mean the charge is not made out. No jury direction could ameliorate the prejudice that stems from the loss of this material.
(d) The general weakness of the evidence of allegation involving BR was argued to be a specific prejudice. The case is weak according to the Applicant as there is an absence of any corroborated complaint. The earliest complaint is 24 years later which is at odds with BR’s evidence that he complained to his sister in 1979. BR’s assertions about the Applicant’s behaviour towards himself and his friends at his house is not supported by any evidence and are squarely contradicted by the evidence of Peter Randall. BR’s assertion that the Applicant was his form teacher in 1976 is contradicted by two other witnesses. BR voluntarily stayed in contact with his abuser. There are no admissions of guilt by the Applicant and no admissible evidence of incriminating conduct.
(e) Balancing the public interest in the prosecution and conviction of serious crimes. The Applicant argued that each of the offences before the Court are on the lower end of the sexual offence spectrum. Each involve an allegation of a brief touching over clothes. In the majority of the charges the complainants are over the age of 15 or 16. These charges may be dealt with summarily and often are. The Applicant referred to the cases of McGee and Bauer both of which held that it was necessary to maintain a sense of proportion and that the public interest in prosecuting those charges was not as strong a factor as in the case of more serious offending. This needed to be weighed with the age of the accused who was approaching the final phase of his life.
54The Applicant submitted when all factors are considered there is a real doubt that the public interest requires the prosecution of these charges which relate to conduct alleged to have been committed almost half a century ago.
55There are not directions or rulings that could counteract the significant prejudice the Applicant would suffer if this trial was to proceed.
56According to the Applicant, the cumulative effect of the presumptive and specific prejudices is so central and significant that this case falls into the exceptional category that warrants the granting of a permanent stay.
Respondent’s submissions
57Counsel for the Respondent submitted that the delay was more correctly described as substantial, it couldn’t be described as exceptional given the amount of cases of this vintage coming before the courts. The real question for the court he submitted was whether as a result of the delay and/or any other factors the trial must be unacceptably unfair on any of the given charges.
58In relation to the question of the seriousness of the offending the Respondent submitted that the fact that the Applicant was the complainants’ headmaster and that the alleged offending occurred whether he was in that role or not he was still a senior and trusted adult in the life of the complainants. This alone was said to elevate the offending in seriousness although it was conceded that it could not be said to fall within the upper end of a potential range of seriousness. Further it was submitted that there was substantial public interest in bringing matters of this kind to court so juries can determine issues. That is what the public expect of its justice system.
59In relation to the criticism of the very poor memory of EM the Respondent submitted that this categorisation was based on a selective reading of his evidence. In any event, it could be cured by an unreliability warning - Delay Risking Honest but Erroneous Memory pursuant to s 32 of the Jury Directions Act 2015.
60With regard to the particular offences the Respondent made the following points:
(a) Charge 1, EM was in year 7 and the alleged offending took place on his 13th birthday. He was isolated from his family or witnesses at the time. EM was scared. The Applicant agreed the event had occurred. The staff at the restaurant were witness to surrounding contextual circumstances only and not integral to the central allegations. It was highly speculative what these people may have said but they could not have given any evidence about what happened in the car. Any prejudice suffered by the Applicant by their absence could be cured by a direction in relation to forensic disadvantage.
(b) Charge 2 was also said to be serious as this alleged offending also involved the Applicant isolating EM. EM had to fight off a much older man who then went on to repeat this behaviour on 12 uncharged occasions. The Respondent submitted there was arguably more context evidence missing in relation to this charge. Sister Jones is available to give what evidence she can but that evidence is likely to be of limited assistance to either the prosecution or defence. It was submitted that she does not give exculpatory evidence. The potential evidence from administration workers, it was argued, could only go to context and as such was not integral to the allegations as they were alleged to have occurred behind closed doors. It was conceded that there is little for the Applicant to do other than deny this charge and comment on the implausibility and criticise the lack of detail, but that is a feature of a lot of cases of this age that proceed. These cases proceed with appropriate caution and warnings being given to the jury.
(c) Charge 3, the Respondent did not answer the submissions that there is no offence of indecent assault disclosed by the factual allegations of the charge. Rather in written submissions the Respondent maintained that the allegations were serious as the Applicant continued to act in a predatory way towards EM and took advantage of the isolation of EM. It was also argued that the Applicant had a supervisory role with regard to EM as he was on work experience, even though this arrangement did not directly involve the Applicant. In oral argument Counsel invited the Court to rule on the specific and presumptive disadvantages that arise because of the delay not on the issue of whether it is the correct charge. Further the Respondent submitted there were only two people present for this alleged offending EM and the Applicant, there was uncertainty whether George Solomon lived at the house at the time. In any event Solomon’s evidence could only go to context and was not integral to these allegations. The Applicant conceded that EM could have stayed for work experience and in those circumstances there is no suggestion that this could give rise to any type of alibi.
(d) Charge 4, the Respondent submits this is also an incident that involves the Applicant taking advantage of his position of authority over EM. This time in his role as owner of a restaurant where EM worked. Further the Respondent submits there is some support for this incident in the very fact that the Applicant was an owner of the restaurant and that EM worked there. It was open to the Applicant to make arguments about plausibility. Any gaps in EM’s memory could be dealt with as part of the unreliability warning.
(e) In relation to the uncharged incidents of “scrag ‘em” and the uncharged acts at the Applicant’s homes in Central Victoria and Kew the Respondent submitted that any absent witnesses were witnesses that were not integral to the offending as these matters were only being led as context. Alternatively, any prejudice could be mitigated by excluding this context evidence.
(f) Charge 5, the Respondent argued that this was also serious offending as it followed a period of invitations where BR and others had visited the home of the Applicant to use his pool, sauna and tennis court. The Applicant had deliberately booked a motel room with one bed, so there was some pre-planning. This offending also involved an abuse of position of authority and care, was perpetrated by the Applicant isolating BR and it was offending against a child. The Respondent also submitted that age was not an element of this offence so if a jury was not satisfied this occurred before BR’s 16th birthday they could return a verdict on the charge of incident assault. This offending also brings into context the evidence of the attendance of BR and others at the Applicant’s home in Central Victoria. The Respondent argued in this sense Peter Randall is a powerful implement for the defence to attack the credibility and reliability of BR.
61Generally, the Respondent submitted that any unavailable witnesses went to contextual evidence only and as such were not important. What those witnesses might have said was entirely speculative. This was not a situation where exculpatory eye witnesses or alibi witnesses had been lost. Likewise any unavailable documents went to peripheral matters only and their absence could be dealt with by way of direction.
62The Respondent’s ultimate submission was that none of the factors raised by the Applicant alone or in combination justified a permanent stay in relation to any of the charges in this case.
Consideration
63In Victoria, an individual charged with a criminal offence has the right to a trial without undue delay.[29] The right to a fair trial is paramount and if a proceeding cannot be conducted fairly, a court may grant a permanent stay.[30]
[29] Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 21, 25.
[30] Jago (n 7).
64I consider the delay in this case to be extreme and exceptional. Whilst I acknowledge that any sexual offending is serious particularly, sexual offending against children, I do not regard the current allegations as at the upper end of the scale. Further if there were to be a finding of guilt in this matter it is unlikely that the applicant who, in his 80s, would receive anything other than a nominal sentence.
65It is against this backdrop that the application for a permanent stay falls to be considered.
66In this case the factors which are submitted to constitute a fundamental defect must each be carefully scrutinised; individually and together. These factors must also be balanced against the public interest and the desirability of the conviction of those guilty of serious charges. I have already referred to the relevant principles governing this application. At the forefront of my consideration, I must be satisfied of the probability and not merely the possibility of unacceptable unfairness and that such unfairness will not arise simply because a jury are required to determine the issue(s) in the case on less than all of the relevant material. I must also keep firmly in mind the ability to make rulings and/or to give judicial directions to ensure the fairness of the trial process.
67As to the presumptive prejudices relied upon by the Applicant:
Memories of the witnesses
(a) On the evidence before me I accept that the very long delay has had a deleterious effect on the memories of almost all witnesses in this case. The absence of detail in relation to surrounding circumstances significantly impedes the Applicant’s ability to investigate the existence of an alibi or other exculpatory evidence. In these circumstances the Applicant is in the position where he can do little more than make bare denials. His ability to challenge the credibility and reliability of the evidence of EM and BR is seriously undermined.
(b) This delay also dilutes the value of the evidence of exculpatory witnesses, in particular Peter Randall and to a lesser extent Sister Jones. Each of these witnesses say they did not see anything untoward from the Applicant. However, each of these witnesses describes having a poor memory of the relevant time and in these circumstances the value of their evidence is reduced.
Absence of witnesses
(c) There are no eye-witnesses or independent witnesses to the alleged offending itself. The Applicant detailed several other witnesses who are not available to give evidence. I consider each of these witnesses to be relevant but I do not consider them to be crucial. Of these witness I consider Sister Rooney, who is now deceased, to be the most important. I accept that as the vice principal of the College she worked closely with the Applicant and would have been able to give evidence about the location of offices, the identity of administration staff, the duties of the Applicant, including whether he had a role as a form teacher, amongst other things. This type of evidence would potentially be relevant to such matters as the plausibility of claims and opportunity and is evidence that could be categorised as a lost opportunity for the Applicant.
Unavailable records
(d) There were numerous documents that were unavailable including floor plans and photos of the school, staff records and timetables, records from the small restaurant that is now gone and records from the East Melbourne hotel. I accept that the focus of attention in relation to unavailable evidence must be the value of the lost opportunity as assessed from the perspective of the defence. Further I accept that whilst it is not know what the lost records in this case might contain it is probable that they could have materially assisted the Applicant in his defence.
68I have considered this evidence in light of what the Court of Appeal said recently in the case of Lucciano[31]:
“The cases draw a distinction between the loss of evidence as a result of delay and the loss of opportunity to obtain evidence. In the latter case, the content of the evidence is a matter of speculation and by itself this may not constitute actual, as distinct from presumptive, prejudice. If so, it is more likely that a forensic disadvantage direction will be able to remedy the deficiency”.
“However, even where it cannot be said what evidence witnesses would have given, their absence may still give rise to prejudicial unfairness. It is necessary to focus on the value of the lost opportunity, assessed from the perspective of the defence. The cumulative effects of delay must be considered”.
[31] Lucciano (n 9) [42]-[43].
69When the impact of the absence of witnesses and documents is looked at from the perspective of the defence I consider this to be a case where the absence of this evidence will cause very real prejudice to be experienced by the Applicant. It is not known what evidence the missing and unidentified witnesses would have given or what the documents would have shown but the impact of their absence is to severely restrict any means of attacking the central allegations made by the complainants. In this regard I take into account the cumulative effect of the absence of such evidence and I consider it gives rise to prejudicial unfairness.
70As to the specific prejudices relied upon by the Applicant:
The particularly poor memory of Edward Myers
(a) I agree with the characterisation of the evidence of EM by the Applicant. He is able to detail the allegations but his evidence is bereft of detail in relation to surrounding events. In these circumstances the Applicant is unable to cross examine and challenge EM’s version of events in any meaningful way. This together with the absence of witnesses, the poor memory of witnesses that are available and the absence of documents combines to create a situation of prejudice to the Applicant which I consider to be specific and real.
(b) The unreliable witness warning would go some way to ameliorating the impacts of delay identified. The direction points out the impact of delay on a witness’ memory. However, in the circumstances of this case where there is evidence of the central allegations and little else there is no opportunity to demonstrate how the memories are erroneous or distorted. To this extent the direction would be ineffective or at least hampered in its ability to ameliorate the prejudice.
Unavailability of the admin witnesses and the “scrag ‘em” witnesses
(c) The offending described by EM in charge 2 when he was wearing the netball skirt and the uncharged acts that are alleged to have occurred during the “scrag ‘em” game are both alleged to have occurred in the presence of several people. None of these people have been identified and none will be witnesses at trial.
(d) The unidentified administration staff would have been in close proximity to the Applicant’s office at the time of the alleged offending. On the evidence of EM he spoke to at least one staff member to get permission to enter the Applicant’s office. The unavailability of staff records has led to the inability to identify who was working there at the time. The lack of photographs or floor plans of the school office area in combination with the lack of surrounding witnesses creates a significant prejudice - there is no way to challenge EM’s account of the alleged offending.
(e) The “scrag ‘em” game described by EM would represent both memorable and outrageous behaviour by the Applicant if it were true. On the description given by EM there was no attempt to disguise the behaviour and it would have been open for all to see. Given the passage of time police could not locate one student or teacher who had witnessed this event. I consider that such witnesses would be highly relevant to an assessment of the credibility and reliability of EM. I do not accept that an acceptable remedy would be to exclude the evidence of the uncharged acts altogether. This incident, although uncharged is integral to EM’s account of the offending and represents a real potential for the Applicant to be able to challenge the credibility of EM. To exclude it would create further prejudice.
Medical records of Brian Randall
(f) Charge 5 of indecent assault is described as indecent assault of a child under 16. The applicable legislation is the Crimes Act 1958 as amended by the Crimes Amendment Act 1967 the relevant provisions are as follows:
s 68(3A) - Whosoever unlawfully and indecently assaults any male person shall be guilty of a misdemeanour and shall be liable to imprisonment for a term of not more than five years.
s 68(4) - It shall be no defence to a charge for an indecent assault on a male person under the age of sixteen years that such assault was made with the consent of such male person.
71It is my view that age is not an element of this offence. Although the Applicant has been charged with indecent assault of a child under 16 the alternative charge would be open if a jury was not satisfied that BR was under 16. Age becomes a live issue in relation to consent. Having formed this view I do not consider the missing medical records of the hospital attendance to be so important as to create a specific prejudice as contended for by the Applicant. I do however, consider them to be important documents and would categorise them in the same way as other missing documents in this case.
The weakness of the prosecution case involving Brian Randall
72The Applicant points to a number of factors that are said to combine to undermine the reliability and credibility of BR to the extent that the prosecution case is weak. I accept the defence submission that the case on charge 5 is weak for the reasons advanced. However, taking the prosecution case at its highest, I am not persuaded that the proceedings are foredoomed to fail. I do take into account the weaknesses in the prosecution case in relation to this charge as part of the combination of factors mitigating towards a permanent stay.
73In relation to charge 3 of indecent assault. I consider that this charge is foredoomed to fail. The factual basis of this charge involves EM walking into the sauna at the Applicant’s home, witnessing the Applicant masturbating and being invited to join him. EM refuses and leaves. This factual scenario in my view does not found the basis for a charge of indecent assault. Nor in my view does it found the factual basis of a charge of gross indecency. This is particularly so when consideration is given to the case of Crampton[32] which was referred to in oral argument by the Applicant’s Counsel. For a charge of gross indecency to be made out it is necessary for the prosecution to prove that the ‘gross indecency’ be ‘with’ EM. In the circumstances it is my view that this charge should therefore be permanently stayed.
[32] Crampton v R [2000] HCA 60 (‘Crampton’).
74If I am wrong about this, I note that the factual basis alleged is not dissimilar to one of the charges stayed in the case of Bauer. In that case charge 2 of gross indecency was described as follows[33]:
[33] Bauer (n 13) [59].
“Within days of the first events in the woodshed, the applicant again asked GP to help him collect wood from the shed. She at first refused, but accompanied the applicant when ordered by her older sister, JW, to do so. Once inside the shed, the applicant took out his penis and tried to approach GP, who picked up some firewood and ran inside”.
The Court also said the following[34]:
“There is, the cases recognise, a public interest in the disposition of charges for serious offences. And at one level, any charge relating to sexual misconduct with a child must be regarded as serious. As such cases go, however, the conduct comprising charges 1 to 4 — particularly charges 1 and 2 — falls some way short of being at the more serious end of the spectrum of cases involving sexual offending against children. Indeed, the members of this Court have not previously encountered a case where an offence of the type alleged in charge 2 — little more than indecent exposure — has been prosecuted after nearly half a century. Almost certainly, had charges 1 and 2 been prosecuted in 1967, they would not have resulted in a custodial sentence if found proven”.
[34] Ibid [102].
75In this case I consider the allegation of what occurred in the sauna to be of a similar nature to the charge described in Bauer and I would grant a permanent stay on the basis of the long delay, the limited evidence, the lack of seriousness and the likelihood that a finding of guilt would not be met with a custodial sentence.
Conclusion
76I have taken into account, in deciding whether to grant a permanent stay, the relative seriousness of the charges.[35] There is of course a public interest in the disposition of charges for serious offences. As Priest CJ said in the case of Bauer, ‘at one level, any charge relating to sexual misconduct with a child must be regarded as serious.’[36] However, the charges before me do fall some way short of being at the more serious end of the spectrum of cases involving sexual offending against children. I do not regard the public interest as favouring the prosecution of the offences.
[35] Lucciano (n 9) [48].
[36] Bauer (n 13) [102].
77In relation to all charges I have also considered the availability of any alternate mechanism available to ameliorate the relevant identified prejudice/s. While a forensic disadvantage direction under s 39 of the Jury Directions Act 2015 is available I do not consider that it could cure the unfairness in this case.
78The credibility and reliability of both EM and BR’s evidence will be fundamental to the success of the prosecution case. Correspondingly, the Applicant’s ability to undermine the credibility or reliability of such evidence will be crucial to rebutting the prosecution case. The substantial delay and the unavailability of records and other independent evidence seriously impairs the Applicant’s ability to do this. He has been deprived of crucial contextual evidence which, in combination, may have enabled him to raise a reasonable doubt about the occurrence of some of the events upon which success of the prosecution case depends. The evidence would have been available to him if the timing of the charges were more proximate to the alleged offending.
79These combined factors, coupled with the other sources of identified prejudice in the case, renders it probable that a trial for the charges against the Applicant would be unacceptably unfair and I grant the application for a permanent stay in relation to each of the 5 charges subject of the application.
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