Director of Public Prosecutions v Low (a pseudonym) (Ruling No. 5)
[2024] VCC 708
•2 May 2024 22 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES LOW (a pseudonym)[1] |
[1] A pseudonym used to protect the identity of the accused who is awaiting trial.
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JUDGE: | His Honour Judge Trapnell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 April 2024 | |
DATE OF RULING: DATE OF REASONS: | 2 May 2024 22 May 2024 | |
CASE MAY BE CITED AS: | DPP v Low (a pseudonym) (Ruling No. 5) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 708 | |
RULING NO. 5
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Subject:Criminal Law – Permanent stay of proceeding
Catchwords: Pre-trial ruling – Application for permanent stay of proceeding – Delay and loss of evidence asserted – Innocent contamination and displacement effect asserted – Positive picture identification – No displacement effect arising out of Facebook searches – No extreme delay – No prejudice suffered as a result of loss of evidence – Failure to discharge heavy onus
Legislation Cited: Evidence Act 2008
Cases Cited:Buchanan (a pseudonym) v The King [2024] VSCA 50
Ruling: Application refused
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T C Wallwork with Mr J McCarthy | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr J Blackley | SLKQ Lawyers |
HIS HONOUR:
Introduction
1The accused is charged on indictment with alleged offences involving two complainants, BR and DW. In relation to BR, he is charged with one charge of sexual assault of a child under the age of 16 (Charge 1) and one charge of false imprisonment (Charge 5). In relation to DW, he is charged with two charges of sexual penetration of a child under the age of 16 (Charges 2 and 3), one charge of trafficking a drug of dependence to a child (Charge 4), and one charge of false imprisonment (Charge 6). He intends to plead not guilty to all charges. The main issue in the trial is the identity of the alleged offender.
2The accused applies for a permanent stay of proceeding based on delay and loss of evidence. The loss of evidence is said to be ‘the loss of capacity to objectively determine the timing of the Facebook searches’ which is said to have ‘deprived the accused the opportunity to receive a fair trial’. The accused recognises delay in and of itself does not warrant an order for a permanent stay of a proceeding but it is a circumstance which may support an application generally.
3On 2 May 2024, I refused the application. I gave very brief reasons at that time and said I would provide detailed reasons at a later time. These are those reasons.
Background
4The background to these applications is set out in my ruling on the admissibility of the complaints’ picture identification evidence (‘Ruling No. 4’).[2] It is because I did not exclude that evidence from the trial that the present application is being made.
[2] DPP v James Low (Ruling No. 4) [2024] VCC xxx [5]–[21] (‘Ruling No. 4’).
Evidence relevant to the present application
5The evidence relevant to this application is summarised in Ruling No. 4.[3]
[3] Ruling No. 4 [64]–[75].
Defence submissions
6The accused relies on written submissions dated 7 April 2024.[4]
[4] Submissions on Stay of Proceedings and Further Admissibility Issues, dated 7 April 2024 (‘Defence Submissions’).
7He correctly observes the circumstances will be ‘extreme or drastic’ before relief of this nature is given. In The Queen v Glennon[5] it was held that ‘a permanent stay will only be ordered in an extreme case and there must be a fundamental defect “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”’.[6] That statement was adopted by the High Court in Dupas v The Queen[7] which added that there is no ‘definitive category’ of extreme cases.[8]
[5] (1992) 173 CLR 592
[6] Ibid 605 (Mason CJ and Toohey J) quoting Barton v The Queen (1980) 147 CLR 75, 111 Wilson J).
[7] (2010) 241 CLR 237, 245 [18] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
[8] Ibid 250 [35].
8The accused also refers to Williams v Spautz,[9] R v Davis,[10] Lo Rocca v The Queen,[11] Stickland (a pseudonym) v DPP (Cth),[12] Holmden v Bita[13]and Yovanavic v The King.[14]
[9] (1992) 174 CLR 509.
[10] (1995) 57 FCR 512.
[11] [2023] NSWCCA 45.
[12] (2018) 266 CLR 325.
[13] (1987) 47 SASR 509.
[14] [2023] NTSC 53.
9The accused relies on ‘innocent contamination’ and ‘displacement effect’ particularly influencing DW’s picture identification of the accused by reason of what the accused submits is an earlier viewing by DW of the accused’s Facebook account which contained his photograph.
10The accused submits:
Witnesses [DW][15] and [ET][16] describe two discrete occasions where they searched for and located the offender on Facebook. Specifically, the occasion recalled by [ET] recalled using only the name [“James”] and the occasion recalled by [DW] recalled using [“James Low”] to search. Both agree there was more than one occasion where they searched the offender. It is not disputed that [DW] and [ET] found the Facebook profile of the accused on each discrete occasion. It is unclear when the searches took place.
However, as I understand the evidence it is very much disputed that the first Facebook search using the search term ‘James’ disclosed anything at all regarding the accused. Moreover, in my opinion there is no evidence from which it could be reasonably inferred that BR was aware of the conduct of the Facebook searches or any information regarding the accused derived from either of them at any relevant time.
[15] A pseudonym used to protect the identity of the complainant and the accused who is awaiting trial.
[16] A pseudonym used to protect the identity of the accused who is awaiting trial.
11The submission proceeds that neither DW nor ET recalls ‘which device was being used at the time of the Facebook search’. Neither DW nor ET have retained their mobile phones or any other devises they might have used to conduct the Facebook searches back in 2019.
12The accused submits, the inability to analyse DW’s and/or ET’s mobile telephone or other devices with a view to establishing the dates on which the Facebook searches were conducted has caused him to be ‘prejudiced to such an extent that a fair trial cannot be remedied by direction, bearing in mind the missing evidence goes directly to the substantive issue in this case.’
13The accused submits:
40.The admissibility of the photo board identification evidence is inexorably tied to the question of when the Facebook search took place. The significance being that, if the Facebook search took place prior to the photo board identification, the inevitable conclusion would follow that there is a substantial risk of the ‘displacement effect’ influencing the photo board identifications. This is a factor [that] goes directly to the heart of admissibility (both the probative value and risk of unfair prejudice) of the photo board identification evidence.
41.The loss of the evidence means that the accused is deprived of establishing with objective evidence the timing of the Facebook searches by the identification witnesses. There are no means by which the material can be retrieved.
…
53Had the accused had access to the lost evidence, he could have demonstrated with objective evidence the timing of the ‘Facebook searches’ and thus compelled the objection of the photo board identification. The net result is that the accused in this case will be left to meet the evidence in circumstances where he is at a forensic disadvantage.
55… One of the key questions crucial to the determination of its admissibility cannot be resolved by the interrogation of objective evidence which has now been lost.
56 … Defence submit that the admission of the evidence will cause an irreparable prejudice to the accused because, by virtue of the special nature of identification evidence, the accused is unable to meet it.
14The accused is also highly critical of the police investigation for allowing a situation to arise whereby ‘the material [has] become unrecoverable’.
15Moreover, the accused submits ‘the unfair prejudice to the accused arising from the admission of the photo board identification evidence cannot be cured by directions’. This is said to be because ‘the identification evidence cannot be disentangled from issues of innocent infection, the displacement effect and other circumstances’.
16So far as balancing the public interest in bringing serious criminal conduct to trial against the need to ensure the accused receives a fair trial according to law is concerned,[17] the accused submits:
permitting the trial to proceed in the circumstances presented on the application risks prioritising the conviction of a suspected offender against ensuring the integrity of the justice system and the guarantee of a fair trial.
[17] See Jago v District Court (N.S.W.) (1989) 168 CLR 23, 30–31 (Mason CJ), 60-61 (Deane J), 72 (Toohey J).
Prosecution submissions
17The prosecution relies on written submissions dated 15 April 2024.[18]
[18] Prosecution Submissions on Stay of Proceedings, dated 15 April 2024.
18So far as any putative prejudice to the accused arising from any inability to objectively determine the dates of the Facebook searches is concerned, this cannot affect the fairness of the trial in so far as it relates to the charges where BR is the complainant because, regardless of when the Facebook searches were conducted, the accused concedes there is ‘no explicit suggestion of innocent contamination/infection’ of BR’s evidence.[19]
[19] See Defence Submissions [104] and [116].
19The prosecution submits, on the evidence the first Facebook search provided no information regarding the accused and the only reasonable inference open on the whole of the evidence is that the second Facebook search must have occurred some time after BR’s and DW’s photo board identifications. Accordingly, the ‘asserted unacceptable unfairness is speculative’. Indeed, the prosecution submits, ‘it is more likely than not exculpatory Facebook data does not exist if [DW’s] evidence is accepted’.
20In the alternative the prosecution submits:
If the prosecution are wrong about the evidence of the timing of the Facebook searches and the Court accepts the defence submission that (in essence) it’s not known whether the searches took place before or after the photoboards were viewed and therefore it is impossible for the Accused to “objectively determine the timing of the Facebook searches”, the prosecution submit this does not justify a stay because:
a.Even if the evidence given by [DW], [BR] and [ET] about the Facebook searches means their evidence as a whole is weak or tenuous, lacks credibility or suggests there might be displacement the prosecution submit this is not “unacceptably unfair”. The prosecution submit such evidence is a jury question[20] and that if a witness’ (sic.) credit is in issue, this does not occasion unfairness to the Accused[21].
b.[DW], [BR] and [ET] have been cross examined about the Facebook searches. The Accused has the benefit of evidence elicited in cross examination about those Facebook searches (notwithstanding raw Facebook data will not be before the jury).
[20] Hague v The Queen [2019] VSCA 218 [114]–[125]. A court may stay a proceeding that is foredoomed to fail but must not usurp the role of the jury (Jones v R [2017] VSCA 57 [12]).
[21] Buchanan (a pseudonym) v The King [No 2] [2024] VSCA 50 [91].
21Turning to more general matters, the prosecution submits this is not an extreme case and the accused has not discharged the heavy onus placed upon him. There has been no ‘extreme delay’ and, even if there had been, as the defence concede, this alone is insufficient to justify a permanent stay of the proceeding.[22] Moreover, the prosecution submits, ‘there are other less drastic remedies available other than a permanent stay, namely evidential rulings and directions. In particular section 39(1) of the Jury Directions Act 2015.’
[22] See eg Jones(a pseudonym) v The Queen [2017] VSCA 111 [63] (Whelan JA, Ferguson JA and Kidd AJA).
22Finally, the prosecution submits, ‘The allegations against the Accused are very serious and there is a very high public interest in having a jury determine the charges against the Accused.’
Legal principles
23The legal principals to be applied in determining this application are well settled and non-controversial. In Buchanan (a pseudonym) v The King[23] the Victorian Court of Appeal discussed at some length the principles to be derived from the authorities relevant to an application for a permanent stay on the basis that continuation of the proceeding would amount to an abuse of process due to the impact of delay and the consequent loss of evidence resulting in incurable forensic disadvantage faced by an accused. It is convenient for me to set out those principles as stated by the Court:[24]
[23] [2024] VSCA 50.
[24] Ibid [31]–[36] (Emerton P, Whelan JA and Elliott AJA) (citations omitted).
31… A court should only stay an indictment (or any part of it) if satisfied that, in all the circumstances, its continuation would involve unacceptable injustice and unfairness or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. The party seeking the stay bears a heavy onus, with consideration of whether it has been discharged to be assessed on the balance of probabilities.
32A fulsome elaboration of the considerations which underpin a decision to permanently stay proceedings was provided by this court in R v FJL. These principles were later extracted and restated in Hermanus (a pseudonym) v The Queen, as follows:
• First, the exercise of the power to stay must be exceptional since it results in effect in a refusal to exercise jurisdiction. The primary responsibility for deciding whether criminal proceedings should be maintained lies with the Executive and not with the court.
• Secondly, in cases involving delay, to justify a permanent stay of criminal proceedings 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. The accused must demonstrate that the delay is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute.
• Thirdly, circumstances that the court should consider in determining an application for a stay include: the length of the delay; reasons given by the prosecution to explain or justify the delay; the accused’s responsibility for and past attitude to the delay; proven or likely prejudice to the accused; and the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime. The critical factors are on the one hand the proven or likely prejudice to the accused, and on the other, the public interest in the prosecution and conviction of the guilty.
• Fourthly, in order to justify a stay, it is the probability of unacceptable unfairness — rather than the possibility — that is critical.
• Fifthly, a trial will not necessarily be unacceptably unfair even where relevant documents, recordings or other kinds of evidence have been lost or destroyed, or witnesses have died, so that the jury will be called upon to determine issues of fact on less than all of the relevant material which might bear upon the issues thrown up for determination.
• Sixthly, the trial judge may avoid obstacles to a fair trial by evidentiary rulings — including by the exclusion of evidence which is technically admissible, but which might operate unfairly against the accused — and by directions to the jury designed to counteract any prejudice that the accused might otherwise suffer.
33Any assessment of whether exceptional circumstances warranting a permanent stay exist is a qualitative, not quantitative, exercise. In cases involving significant delay, the fairness of a trial will almost invariably be compromised at least to some degree. However, despite the presence of some unfairness, prejudice or forensic disadvantage, it remains possible for an accused to receive a trial that is not unacceptably unfair. The central considerations remain whether the delay has rendered the trial unacceptably unfair or the further prosecution of the case would amount to an abuse of process.
34Where an application for a permanent stay is made on the basis that loss of evidence due to delay has resulted in a trial being unacceptably unfair, it is necessary to consider the value or importance of the lost evidence and its effect on the issues in dispute.36 In this regard, a distinction can be drawn between a loss of evidence as a result of delay on the one hand, and a loss of an opportunity to obtain evidence on the other.37 Where all that has been lost is an opportunity to obtain evidence from a witness or documentary record, the content of such evidence may be a matter of complete speculation and not constitute actual prejudice.
35Further, the unavailability of a witness, even a witness a party considers to be important, does not necessarily mean that a trial will be unacceptably unfair. In many cases where a witness is no longer available as a result of delay, unless that witness could have offered eyewitness or alibi evidence, the content of any evidence they might have given will often be speculative or no more than contextual in nature, or both.
36Naturally, the facts of each case must be carefully considered. However, where lost evidence is properly characterised as contextual or speculative, it is less likely that any resulting unfairness will rise to the level of unacceptable. Instead, any unfairness arising from presumptive prejudice will usually be able to be remedied by an appropriate direction to the jury. That said, even where the evidence which might have been given cannot be ascertained, the absence of a witness or witnesses may still result in prejudicial unfairness. In determining whether such a circumstance has arisen, the value of the lost opportunity must be assessed from the perspective of the defence.
Application of the principles
24In Ruling No 4 I ruled as follows:
142 Following the evidence given at the voir dire conducted on 22 March 2024, I am satisfied on the whole of the evidence that the first Facebook search conducted by DW and ET using the search term ‘James’ occurred after the alleged offending conduct and before DW’s VARE was conducted on 31 March 2019. I am further satisfied on the whole of the evidence this search did not reveal anything concerning the accused.
143 Moreover, I am satisfied on the whole of the evidence that the second Facebook search conducted by DW and ET using the search term ‘James Low’ occurred after DW’s photo board identification of the accused on 18 April 2019 and after the provision to her of the transcript of her VARE by police on 20 May 2021. Accordingly, I am satisfied there is no risk of a displacement effect arising from the Facebook searches operating on DW’s mind at the time of her photo board identification of the accused.
144 So far as any displacement effect arising from the Facebook searches operating on BR’s mind at the time of her photo board identification of the accused, I am satisfied on the whole of the evidence BR was never made aware of the Facebook searches conducted by DW and ET or of any information concerning the accused derived from such searches. Accordingly, I am satisfied there is no risk of a displacement effect operating on BR’s mind at the time of her photo board identification of the accused.
25Since I am of the view no displacement effect arising from either Facebook search was operating on BR’s or DW’s minds at the time they respectively identified the accused in the photo boards shown to each of them, it follows the accused has not suffered any prejudice as a result of DW and ET no longer possessing the mobile telephones or other electronic devices (‘the devices’) they used to conduct the Facebook searches.
26Moreover, even if the devices or any of them still existed and were made available to police for examination, it is entirely speculative whether they would disclose any material that would assist the accused in his defence of the charges.
27Accordingly, the accused has failed to discharge the heavy onus of satisfying me that, in all the circumstances, the continuation of these proceedings would involve unacceptable injustice and unfairness to him or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.
Conclusion
28It is for these reasons that I dismissed the accused’s application for a permanent stay of the proceeding.
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