Green (a pseudonym) v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0164

JOEL GREEN (A PSEUDONYM)[1]	Applicant
V
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant and certain other people.

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JUDGES:	PRIEST, KAYE and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 September 2017
DATE OF JUDGMENT:	28 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 277
JUDGMENT APPEALED FROM:	R v [Green] (Unreported, County Court of Victoria, Judge Quin, 31 July 2017)

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CRIMINAL LAW – Appeal – Refusal of application for permanent stay of proceedings – Refusal to certify for interlocutory appeal – Sexual offences – Delay in prosecuting offences – Alleged offending occurred more than four decades earlier – Unavailability of evidence and witnesses – Whether combination of delay and unreliability of the complainant as a witness justified grant of permanent stay – Whether irremediable prejudice to accused – Application for leave to appeal granted – Appeal allowed – Permanent stay ordered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Fitzgerald with Ms R Sleeth	Victoria Legal Aid
For the Crown	Ms D I Piekusis with Mr A McKenry	Office of Public Prosecutions

PRIEST JA
KAYE JA
COGHLAN JA:

The applicant is charged, on indictment, with 22 counts of sexual and other offences alleged to have been committed against the complainant, Carol Armstrong, at Reservoir between 12 February 1963 and 11 February 1971. Before the empanelment of a jury in the trial, he unsuccessfully applied to the trial judge for a permanent stay of the indictment.[2] The judge subsequently refused an application by the applicant to provide a certificate under s 295(3) of the Criminal Procedure Act 2009. He now makes an application to this Court for a review of the decision of the judge not to grant that certificate, and for leave to appeal against the decision of the judge refusing to stay the indictment.
[2]R v [Green] (Unreported, County Court of Victoria, Quin J, 31 July 2017).

Background

The complainant was born on 12 February 1956. She has two brothers, Cameron who was born in April 1957 and Jacob, who was born in December 1958. The complainant’s parents separated when she was aged approximately three years. The complainant’s mother left the children with their father, who did not continue to look after them on his own. Accordingly, on 22 May 1959 the Elsternwick Children’s Court determined that the complainant should be admitted into the care of the Children’s Welfare Department. On 22 August 1959, the complainant and her two siblings were fostered out to the family of the applicant who resided in Reservoir. The complainant’s brother Cameron remained at that residence, in the care of the Green family, only for a short time, before he was apparently placed in an orphanage.

The Green family consisted of Arthur Green, who is now deceased, and Janet Green, who is also deceased, as the foster parents, together with their children, the applicant, who was born on 8 August 1948 and Patricia Green who was born on 11 January 1951.

Each of the offences, charged in the indictment, are alleged to have taken place in the house, or in a cubbyhouse on the Reservoir property. The complainant lived in that house until June 1972. In her evidence, she states that she was badly mistreated by Janet Green, so much so that she felt intimidated out of disclosing to anyone the offending committed against her by the applicant.

The alleged offending

The circumstances of the alleged offending are set out in the summary of the prosecution case, which, in turn, was derived from five VAREs[3] in which the complainant participated between 1 October 2014 and 10 December 2014. The following is a summary of the complainant’s account as given in the VAREs.
[3]Video and Audio Recorded Evidence. See Criminal Procedure Act 2009, ss 366 and 367.

In the first VARE, the complainant described, in general terms, the circumstances in which she resided at the Green home. In the second VARE, she described a number of occasions upon which she alleged that she was subjected to sexual assaults and other offending by the applicant when she was about 5 years of age. None of those circumstances are alleged in any of the charges on the indictment.

The first event, which gave rise to the first three charges, was alleged to have occurred on a date between 12 February 1963 and 11 February 1965. At that time the complainant’s age was between 7 and 8 years, and the applicant was aged between 14 years and 16 years. On that date, the complainant had been required to pick up rubbish from around the house. The incident occurred around the side of the house while she was performing that chore. The applicant approached the complainant and exposed his penis to her. He asked her to pull it. The complainant complied with that request and masturbated the applicant (charge 1 – gross indecency with a girl under 16 years). The applicant then put his hand inside her top and squeezed her nipples, hurting the complainant (charge 2 – indecent assault upon a girl). While the applicant was doing that, he put his other hand inside the complainant’s underwear, pushed his finger inside her vagina and moved it up and down (charge 3 – indecent assault upon a girl). While the applicant was squeezing the complainant’s nipples and penetrating her vagina, the complainant masturbated him until he ejaculated.

The next series of charges took place in the complainant’s bedroom at Reservoir on two dates between 12 February 1964 and 11 February 1966. On the first date, the applicant entered the complainant’s bedroom while she was in bed at night. He removed her pyjama top and sucked her nipples (uncharged act). He then put his hand down her pyjama pants, inserted his fingers into her vagina, and jiggled his fingers around (charge 4 – indecent assault upon a girl). While that was occurring, the applicant made the complainant use her hand to masturbate his penis until he ejaculated on her hand (uncharged act). He then left the room.

The second event, during that period, took place in the cubbyhouse located in the back yard of the premises at Reservoir, and comprised charges 5 to 7. On that day, the complainant was in the backyard. The applicant called her to the cubbyhouse and told her to ‘get in there’, and she complied with his demand. When inside the cubbyhouse the applicant pushed the complainant onto her back on a mattress, removed her clothing, and sucked her nipples forcefully (uncharged act). He then used two or more of his fingers to penetrate the complainant’s vagina and moved his fingers around forcefully, hurting the complainant (charge 5 – indecent assault upon a girl). The applicant then moved on top of the complainant, forced her legs open with his hands, and pushed his penis against her vagina. She tried to resist and told him to stop because it hurt. When the complainant resisted, the applicant hit her across the jaw with his hand a number of times (charge 6 – common law assault). He then persisted in trying to penetrate her vagina with his penis but was unsuccessful. The applicant lost his erection and became frustrated. He made the complainant masturbate him until he ejaculated (charge 7 – assault with intent to carnally know a girl under 10 years).

The circumstances comprising charge 8 occurred in the complainant’s bedroom at Reservoir between 12 February 1967 and 31 December 1967. The complainant had been sent to her bedroom having been strapped across the bottom by her foster mother. The applicant, who had been present during the beating, entered the room at night, tied her wrists together, and attached them to the bedhead. He swung the complainant onto her knees and removed the lower half of her clothing. He said ‘I’m going to go in this time’. He then moved against the complainant from behind, pushing his penis into her vagina while she was on her knees (charge 8 – carnal knowledge of a girl aged 10 – 16 years). The applicant then untied the complainant’s wrists, pushed her onto her back, and required her to masturbate him until he ejaculated. It was in this time period when, one night, the complainant overhead a conversation between her foster mother and the applicant outside her bedroom, in which the foster mother stated ‘Make it snappy in there’. As a result, the complainant realised that her foster mother appeared to be aware of the applicant’s conduct towards her.

The next charge concerned an incident that occurred between 12 February 1969 and 23 December 1969, when the complainant was 13 years of age. The complainant had got into trouble at school over stealing a piece of material. Her foster mother was called to the school. When the complainant went home, her foster mother beat her severely with a rolling pin, striking her on the head and across the hips. She was then sent to her room in great pain. Later that night the applicant entered her bedroom. He pulled the complainant up from the floor by the hair, bound her wrists together with a cord, and secured the other end of the cord to the bedhead. He pushed the complainant’s school dress up and pulled her underclothing down and off. The applicant then tried to open the complainant’s legs, and in doing so the complainant felt great pain and heard a loud crack. The applicant inserted his penis into her vagina (charge 9 – carnal knowledge of a girl aged 10 – 16 years). The applicant then lost his erection and proceeded to masturbate his own penis. He untied the complainant’s hands, forced her onto the bed, and required her to masturbate him, which she did, as a result of which he ejaculated onto her school dress (uncharged act).

The next incidents, which gave rise to charges 10 and 11, took place between 1 February 1970 and 30 March 1970. At that time, the complainant’s foster mother had been gravely ill, and she died on 30 March. One night, the applicant entered the complainant’s bedroom and told her about something he had seen women do and he wanted the complainant ‘to do it to him’. He told the applicant to open her mouth, but she refused to do so. The applicant then grabbed her mouth and applied pressure to the back of her jaw to force her to open her mouth, and put his penis into her mouth (charge 10 – indecent assault upon a girl). While doing so, he held the complainant’s hand around his penis and guided her hand to squeeze it. The applicant ejaculated in her mouth and he forced the complainant to swallow the semen (uncharged act). On the following night, the applicant replicated the same conduct (charge 11 – indecent assault upon a girl).

The next two charges concerned two incidents that occurred between 1 February 1970 and 11 February 1970. On the first occasion, the applicant took the complainant to the cubbyhouse, and pushed his penis into her anus (charge 12 – buggery). He then required the complainant to use her hand to masturbate him until he ejaculated (uncharged act).

The second incident, during that period, occurred when the applicant entered the complainant’s bedroom one night. He requested oral sex from the complainant, and applied pressure to her jaw to force her mouth open, whereupon he inserted part of his penis into her mouth (charge 13 – indecent assault upon a girl). As he did so, he required the complainant to masturbate his penis with her hand (uncharged act). The complainant got a fright and bit the applicant’s penis. In response, the applicant struck her face and said ‘I’ll get you back for this one’. He then left the room.

Approximately one or two weeks later, following that incident, the applicant took the complainant to the cubbyhouse, and told the complainant it was time for payback. He removed the complainant’s clothing, pulled the curtain across, removed his clothing, and rolled the complainant onto her stomach. He told her to get onto her knees, and then pushed his penis into her anus, causing her pain. He continued to do so until he ejaculated (charge 14 – buggery).

Charge 15 concerns an event that is alleged to have taken place between 1 April 1970 and 21 June 1970, when the complainant was 14 years of age. After her foster mother died on 30 March 1970, the complainant was sent to stay with relatives of the Greens, Joseph and Sandra Bailey. She stayed with that family for one term. During that time, the applicant collected the complainant from that home and took her back to Reservoir. Later that night, he took her by the arm and led her to the cubbyhouse. He told her that ‘the rules have changed’ and ‘I’m going to root you’. When inside the cubbyhouse, he removed her clothing, pushed her onto her back on the mattress, and penetrated her vagina with his penis. He could not achieve full penetration, saying ‘it will go, it will go, it will go’. He then lost his erection (charge 15 – carnal knowledge of a girl aged 10 – 16 years). He then put the complainant’s hand on his penis and required her to masturbate him until he ejaculated onto the mattress (uncharged act).

The next incident took place one night between 21 June 1970 and 31 December 1970 at the Reservoir premises. The applicant took the complainant to the cubbyhouse, taking with him a kerosene lamp. He pulled the complainant’s pyjama top apart, ripping the buttons off and exposing her breasts. The complainant has a supernumerary nipple. He squeezed her breasts causing her pain (uncharged act). He then opened the front of his pants exposing his penis, while at the same time squeezing her breasts. As he did so, he required the complainant to use her hand to masturbate his penis (charge 16 – gross indecency with a girl under the age of 16 years).

The next two charges concern an incident alleged to have occurred between 28 June 1970 and 31 December 1970. On that occasion, the applicant took the complainant into the cubbyhouse and told her to remove her clothes. When she refused to do so, the applicant punched her in the jaw. When she again refused, he punched her again on the nose (charge 17 – common law assault). He then required the complainant to use her hand to masturbate him until he ejaculated (charge 18 – gross indecency with a girl under 16 years).

The next incident occurred in the same time period. The complainant was attempting to hide from the applicant, sitting in the rain between two sheds. When the applicant found her, he lifted her up and took her into the cubbyhouse. There he lifted her dress, and inserted his penis into her anus, pushing back and forth a few times until he lost his erection (charge 19 – buggery).

The next two charges concern an incident that occurred between 1 December 1970 and 25 December 1970, approaching Christmas time. The complainant was doing her homework in the kitchen between 4.00 pm and 5.00 pm when the applicant arrived home from work. He said to the complainant ‘I want to talk to you … now outside’. He dragged the complainant to the cubbyhouse, closed the door, and told her ‘today we are going to make it happen … ‘. When he directed her to remove her clothing, she refused, whereupon he punched her in the jaw with a closed fist (charge 20 – common law assault). The applicant then undressed the complainant, pushed her on the bed, grabbed her jaw, and inserted his penis into her mouth. He told her to ‘suck it’, thrusting at his hips, and saying ‘bite me and you’ll cop it’. The applicant ejaculated in the complainant’s mouth and told her to swallow it (charge 21 – indecent assault upon a girl). The applicant then grabbed the complainant’s breasts, hurting her (uncharged act).

The final incident took place between 25 December 1970 and 11 February 1971. On that day, the complainant was wringing clothes in the outside laundry. The applicant ordered her to go to the cubbyhouse. She refused. He punched her in the stomach and she doubled over. The applicant then walked away (charge 22 – common law assault). This was the last occasion upon which the applicant tried to sexually offend against the complainant.

The complainant’s life after February 1971

In August 1970, the complainant commenced a relationship with Trevor Armstrong. The relationship became quite close, and the complainant confided in Trevor that the applicant had offended against her. Her disclosures of what had occurred developed over time. In early June 1972, with the assistance of a childhood friend of the complainant, Trevor Armstrong took the complainant to his brother’s house in Whittlesea. On 5 June 1972, he then took her to the Family Welfare Division of the Social Welfare Department, where (according to the complainant) she disclosed to a social worker that she had been abused in the Green household. The complainant was given the option of returning to that household, or residing in the home of her biological mother. The applicant chose the latter, and resided there for some time. However, within the next year, the applicant also moved into the same house. As a result, the complainant disclosed to Trevor Armstrong more about the extent of the sexual abuse of her by the applicant. Ultimately, the complainant and Trevor Armstrong married in March 1975 and they have remained together, having three children.

Pausing there, we should interpolate that the records of the Social Welfare Department do not support the complainant’s account of the meeting on 5 June 1972. The records contain a note by a social worker (Mrs J Rusden) that, on that date, the complainant, Trevor Armstrong, the complainant’s mother and the applicant, attended at the office without appointment to discuss ‘the complete breakdown of [Carol]’s foster placement’. The note recorded that the difficulty, which had arisen concerning the complainant’s placement with the Green family, concerned the relationship of the complainant with her foster sister Patricia. The complainant told the social worker that Patricia was neglecting her father and the house, that she ignored the complainant, and that the complainant was finding ‘the whole situation intolerable’. The note does not contain any reference to, or complaint about, any conduct of the applicant towards the complainant. We shall return to that note, and other notes of the Social Welfare Department, later, when considering ground 1 of the application.

In about 1990, on the recommendation of a counsellor, the complainant wrote a short booklet entitled ‘My Silent Tears’, in which she made some limited reference to the applicant’s abuse of her. In the fifth VARE, the complainant said that, in 2000, she told her sister-in-law, Cindy Rodgers, of the abuse of her by the applicant. Ultimately, in 2014, the complainant contacted the Royal Commission into Institutional Responses to Child Sexual Abuse. As a consequence, she attended the Wodonga Sexual Offences and Child Abuse Investigation Team of Victoria Police, where she took part in the five VAREs.

On 21 May 2015, the applicant was arrested and interviewed at the Williamstown Police Station. When the allegations were put to him in a recorded interview, the applicant denied the offending and stated that the complainant was ‘dreaming’.

The proceedings

As mentioned, the five VAREs were conducted between 1 October and 10 December 2014. In the first VARE (conducted on 1 October 2014), the applicant described, by way of background, her life at the Green home, and the manner in which she was mistreated by her foster mother. In the second VARE (conducted 31 October 2014) she described seven different occasions on which she alleged the applicant sexually assaulted her when she was approximately 5 years of age. As mentioned, those occasions are uncharged acts. She then described the events that are the subject of charges 1 to 3 on the indictment. In the third VARE (conducted 7 November 2014) the applicant described the events that are the subject of charges 4 to 12 on the indictment. In the fourth VARE (conducted 21 November 2014) she described the matters that are the subject of charges 13 to 22. In the fifth and final VARE (10 December 2014) the complainant described the circumstances that occurred after the conclusion of the alleged offending, and told of some of the circumstances in which she disclosed to other persons the abuse which she alleged the applicant had committed on her.

The complainant’s evidence was taken at a special hearing[4] in the County Court, in which she confirmed the content of the VAREs, and was cross-examined on five successive dates between 27 March and 31 March 2017.
[4]See Criminal Procedure Act 2009, s 370.

The complainant’s health

One of the bases, upon which the applicant sought a stay of the indictment, concerned the question of whether issues relating to the complainant’s health were such as to demonstrate the inherent unreliability of the complainant’s evidence, and the capacity for counsel to be able to cross-examine her in a meaningful way.

The complainant, who is now 61 years of age, has a number of medical and related problems. She suffers from hyperekplexia, which is a rare, usually genetic, condition that is characterised by a pronounced startle response to stimuli. She has suffered a number of seizures over the years. In about 1996–1997, and in 1997–1998, she suffered head injuries as a result of falling unconscious onto the ground. Due to her seizures and head injuries, she is visually impaired and has problems with her hearing. She has been legally blind for 10 years. She suffers from significant and intermittent depression. In addition, she has problems with her short term memory.

The complainant was examined by Ms Louise Vernieux, a clinical neuropsychologist, on 8 September 2016 and Ms Vernieux provided a report to the informant, dated 2 October 2016, in respect of that examination. The complainant was also examined by Ms Jane Lofthouse, a clinical neuropsychologist, on 19 May 2017, and she provided a report in respect of that examination on 29 May 2017. Dr Andrew Gibbs, a clinical neuropsychologist, was provided with documentation concerning the matter, including the reports of Ms Vernieux and Ms Lofthouse. He provided a report, dated 7 July 2017, to the solicitors for the applicant. In turn, Ms Vernieux responded to that report by a further letter dated 20 July 2017.

The psychological evidence

Each of those neuropsychologists gave evidence, and were cross-examined, before the judge on a voir dire that was conducted between 25 July and 27 July 2017.

Ms Vernieux conducted a number of psychometric tests on the complainant. She noted that the complainant’s immediate auditory attention span was mildly impaired. Her working memory span was also impaired. Accordingly, her overall score on the first administration of the Digit Span test was in the moderately impaired range, and on the second administration, her performance was in the borderline range. Ms Vernieux noted that the complainant’s performance indicated ‘significant difficulties with concentration, attention and working memory span, and a high susceptibility to anxiety induced cognitive deficits’. The complainant’s expressive and receptive language were intact. Her recall of verbal information was in the moderately impaired range, indicating that she appeared to have difficulty taking in information, which was consistent with her low attention and working memory span. However, her storage and retrieval capabilities were better.

Ms Vernieux tested the complainant’s executive functioning. Her verbal and non-verbal reasoning was in the average range. On tests of problem solving and planning, her performance was mixed.

In conclusion, Ms Vernieux considered that the complainant’s cognitive profile was consistent with mild frontal lobe dysfunction affecting attention, working memory, memory, planning, and problem solving. She has difficulties with concentration, attention span and working memory span which appeared to underlie her memory difficulties. Her recall of information is somewhat disordered and she muddles information a little. The complainant’s reasoning skills were in the average range, but she had difficulty problem solving, as a result of which she would become significantly confused. Her performance was affected by anxiety, which reduced her attention and working memory span, which was, at best, in the borderline range, but under conditions of anxiety reduced to the moderately impaired range. Ms Vernieux concluded:

While [Carol]’s long term memory appears reasonably intact, her short term memory is less reliable and she is easily muddled and confused, particularly in conditions where she is anxious. As such, while I believe that she would be a reliable witness under conditions where there was minimal anxiety and a non-adversarial environment, under conditions that are typically found in a courtroom her capabilities would collapse. Her cognitive difficulties are compounded by her difficulties with vision and hearing which would render the courtroom experience are [sic] particularly discombobulating one, and given her history of panic attacks and anxiety would likely traumatise her further. As such I recommend that she not be placed in a courtroom situation as a witness.

Ms Lofthouse also administered the same set of tests, and noted that overall her current test results were broadly consistent with those obtained by Ms Vernieux in 2016. In essence, her full scale intelligence quotient was 80, within the low average range. Her scores were well within the average range across a number of areas, which included remembering verbal material after a 30 minute period, and non-verbal material at immediate recall. She displayed impairment across the areas of verbal memory (immediate recall) and visual memory (after a delay of 30 minutes). The complainant’s processing and knowledge of verbal or conversational material was in the average range. Her scores across non-verbal material suggested that she was able to understand patterns and visuospatial concepts. On testing, the complainant experienced problems processing information in an efficient and timely manner, which was exacerbated by her significant level of anxiety. She also demonstrated some of her lowest scores on attention, and, again, her significant level of anxiety was a contributing factor. The complainant had some difficulty on tests of verbal and non-verbal memory suggesting she experienced a degree of forgetfulness. Her test scores fell in the average range on tests of verbal and non-verbal problem solving.

In conclusion, Ms Lofthouse noted that on testing the complainant demonstrated intact non-verbal and verbal problem solving skills, which placed her in a good position to understand court proceedings and answer questions in a reasoned and thoughtful manner. She demonstrated impairment in attention, memory and speed of information processing. Ms Lofthouse considered that it was likely those depressed skills were related to a combination of intellectual impairment, psychological factors (depression and anxiety) and visual and hearing disabilities. Ms Lofthouse considered that if the complainant’s intellectual deficits had been taken into account that would facilitate her ability to be a witness in court. She would require a quiet environment with rest breaks and time to develop her answers. Due to her high level of anxiety, it would be likely she would function better as a witness if she did not have to give evidence in the actual court room. Ms Lofthouse concluded that the complainant’s test scores were not consistent with her having generalised intellectual impairment, but rather impairments across discrete areas of function. Her non-verbal and verbal problem solving are intact, and that places her in a good position to consider information and serve as a witness in the court.

Dr Gibbs, having viewed the material, concluded that the complainant was scoring at the lowest one percentile on a measure of verbal memory. He disagreed with Ms Vernieux’s opinion that the complainant’s limitations could be adequately catered for by her giving evidence via audio-visual link. He considered that giving evidence in that way would be likely to be ‘gruelling, potentially harmful and extremely risky’. Dr Gibbs also disagreed with the view expressed by Ms Vernieux, in her evidence in the voir dire, that the complainant’s memory does not impact on her historical memory at all. Dr Gibbs stated:

The complainant is a witness where her underlying neuropsychological disorder would impact her capacity to provide accurate or reliable particulars, to be able to follow the track of evidence, or respond to lengthy or grammatically complex or convoluted questions, where there are shifts in topic/material, and where sequencing is involved, for example.

Dr Gibbs considered that, in light of the low level of the complainant’s verbal memory on testing by Ms Vernieux, there was a risk of ‘intrusion errors’, where particulars which are not part of the initial material become incorporated into the memory. He also considered that testing revealed a risk of ‘suggestibility’, particularly in circumstances in which the complainant might be pressed for details of a particular incident. Dr Gibbs referred to passages in the second VARE in which the complainant, when asked whether she told the truth, said she had told the whole truth, but there were some ‘surprises that I — I must have buried’. He also referred to passages from her evidence, in the special hearing, in which she referred to ‘trauma inside my body’, and in which she stated that she had buried her memories. Dr Gibbs considered that those matters were indicative of a ‘repressed or recovered memory’. He was of the view that, given the complainant’s medical conditions, there was potential for her to experience such ‘recovered memories’. In that context, he stated that it was ‘critical’ to have access to the complainant’s medical, neurological and psychiatric counselling records, particularly for the period when she wrote the journal ‘My Silent Tears’ in the early 1990s.

In conclusion, Dr Gibbs considered that there was a serious concern as to the capacity of the complainant to provide evidence under conditions of cross-examination even via audio-visual link. She had a reported performance on a measure of verbal memory for narrative material that was extremely low. Dr Gibbs noted that there were risks of errors of ‘commission as well as omission’ in respect to the complainant’s statement of her recall of alleged events. The complainant’s lack of capacity to recall events in cross-examination could be impacted by the nature of her underlying cognitive/neuropsychological disorder and her mental state.

In her second report, Ms Vernieux took issue with a number of the views expressed by Dr Gibbs. For the purpose of this application, it is not necessary to rehearse those matters. However, and relevantly, she considered that Dr Gibbs provided no evidence or logical argument to support his statement that the complainant’s ‘long-term recollection would be impacted’ as a result of her deficits. Ms Vernieux disagreed with Dr Gibbs’ statement that the complainant’s neuropsychological disorder ‘would impact her capacity to provide accurate or reliable particulars’, as there was no evidence from her assessment of the complainant, nor from Ms Lofthouse’s assessment, to support such a proposition. Ms Vernieux rejected Dr Gibbs’ view that the memory test, administered by her, demonstrated that the complainant had any intrusion errors, or that there was a risk of suggestibility when exposed to repeated questioning. Ms Vernieux concluded by stating that she adhered to her early conclusion that, while she did not believe that the complainant would function cognitively at her best or reliably in a normal court room setting, she believed that her deficits could be adequately catered for by her giving evidence via audio-visual link, together with appropriate environmental adjustments.

The trial judge’s ruling

In her ruling, the judge noted that the application, to stay the proceeding, was based on a combination of factors, including the extremely long delay and the unreliability of the complainant, which, it was submitted, resulted in unfair prejudice to the applicant. In particular, the applicant had submitted that there was specific forensic disadvantage resulting from the delay due to the effects of five matters, namely: the unavailability of the foster parents and neighbour as witnesses; the unavailability of authors of the Social Welfare Department notes; the unavailability of medical records regarding an incident in which the complainant suffered a broken leg; the unavailability of records relating to any therapy or counselling that resulted in the complainant writing her booklet ‘My Silent Tears’; and the proven unreliability of the complainant’s memory.

The judge noted that the complainant’s two foster parents, and a neighbour, who the complainant claimed knew of her mistreatment in the Green home, are not available because they are deceased. The judge accepted that the foster parents may have been able to give evidence about matters contained in the complainant’s account. However, other witnesses who lived in the house at the time were still available, including Patricia Green, and the complainant’s younger brother, Jacob Rodgers. The judge also noted that the forensic disadvantage direction to the jury could include specific reference to the unavailability of the foster mother and the other witnesses.

The judge noted that many of the entries in the Social Welfare Department notes are inconsistent with the account given by the complainant. In cross-examination, the complainant did not dispute the accuracy of the notes. She said that she did not mention any difficulties to the Department because of fear of her foster mother. The judge considered that, accordingly, there would not be prejudice to the applicant as a consequence of the fact that the authors of the notes were not available.

The issue of the unavailability of medical records related to an uncharged incident in which the complainant stated that, on one occasion when she was being sexually molested by the applicant, her leg was broken. That incident is referred to in her booklet ‘My Silent Tears’. The judge noted that the circumstances of the complainant suffering the broken leg are not the subject of a charged act. She considered that specific directions could be tailored to the lack of detailed medical information relating to her account of suffering that injury.

The judge then turned to the lack of counselling records in respect of the person who, the complainant stated, encouraged her to write the material that became her booklet ‘My Silent Tears’. The judge noted that, apart from one reference to a rape, the booklet did not purport to be a detailed account of abuse by the applicant, but, rather, an expression of feelings by the complainant as to the impact of events on her life. The judge considered it was speculative as to whether anything would have been recorded in the therapist’s notes which would be inconsistent with a claim of abuse.

The judge noted that while the period of delay was very long, it was not maintained on behalf of the applicant that that factor, alone, would be sufficient to warrant the grant of a stay. Rather, reliance was placed on the unreliability of the complainant as a witness in combination with that delay. The judge noted that, in support of that submission, the applicant relied on inconsistent statements, flaws in memory, and lack of memory, of the complainant when she gave evidence at the special hearing. The judge considered that those matters essentially are relevant to an assessment of the credit and reliability of the complainant, which are matters ordinarily reserved for a jury. In addition, the judge considered that it was not always clear from the complainant’s response whether her failure to remember related to details of an event, or to the happening of the event itself.

The judge noted that the evidence of complaint to Trevor Armstrong, in the early 1970s, was relevant to an assessment of the complainant’s credit. Mr Armstrong would be giving evidence in the trial. The judge concluded on this issue as follows:

There was lengthy and detailed cross-examination of the complainant. A number of matters arose that clearly will be the subject of argument by counsel. However, even recognising the weaknesses in the complainant’s evidence, it could not be said in respect of all the charges that acquittals were inevitable.
Defence counsel did not argue individual charges should be stayed; rather that all or the whole proceeding should be stayed. This position is possibly explicable by the other part of this argument relating to the unreliability of the complainant and the effect on her long term memory.

The judge then turned to the evidence of Dr Gibbs, Ms Vernieux and Ms Lofthouse. Her Honour stated:

There are, therefore, differing expert opinions as to the effect of the complainant’s condition on her long term memory with each party relying on their own expert. The prosecution indicated that Ms Vernieux was to be called at the trial. The evidence before me at this stage does not unequivocally establish a link between the complainant’s condition and the reliability of her long term memory.

The judge considered the issue as to whether the complainant was demonstrated to have a repressed memory. She noted that the evidence rose no higher than suggesting that there was a possibility that the complainant was giving evidence with such a memory. The judge noted the view of Dr Gibbs that the complainant would be an unreliable witness because of her problems with her memory. However, she noted that that evidence had been challenged by the expert called for the prosecution. The judge stated:

On reading the whole of the complainant’s evidence, I do not accept that it is inevitable that the prosecution will not succeed on all of the charges.

The judge then concluded by noting that the public interest favours the prosecution of offences such as those alleged to have been committed by the applicant. The matters of specific prejudice from delay could be addressed by appropriate directions to the jury, and by the lack of challenge to the Department records. The judge considered that none of the disadvantages, relied on by the defence, taken individually or cumulatively, amounted to such a fundamental defect that directions could not be given to alleviate any unfair consequences. Accordingly, the judge determined that it was not appropriate to take the extreme step of staying the whole of the proceedings.

Grounds of appeal

In the application for leave, the applicant seeks to rely on three proposed grounds of appeal, namely:

1.The learned Trial Judge erred in refusing to permanently stay the Indictment, due to giving insufficient weight to the following matters:
(a)The extreme delay of 47-53 years between the events alleged and the Special Hearing in which the Complainant was cross-examined;
(b)The death of the Applicant’s parents who resided in the home at the time of the alleged offending;
(c)The unavailability of records of counselling the Complainant undertook which would assist in the determination of whether or not her memories are ‘repressed memories’;
(d)The demonstrated unreliability of the Complainant’s evidence;
(e)The forensic disadvantage due to being unable to cross-examine the Complainant on many of the charges;
(f)The forensic disadvantage due to the unavailability of the authors of Social Welfare records and relevant medical records;
(g)The forensic disadvantage as a result of the combination of these matters.

2.The learned Trial Judge erred in failing to identify the charges on the Indictment that are foredoomed to fail, when ruling that not all of the charges are foredoomed to fail.
3.The learned Trial Judge erred in her finding of the extent of the unreliability of the Complainant’s evidence.

Submissions

In support of ground 1, the applicant, first, pointed to the fact that his father and mother are both deceased, and that both of them would have been material witnesses to the allegations made by the complainant. In addition, it is noted that the notes of the Social Welfare Department tend, in parts, to contradict a number of the general allegations made by the complainant, particularly concerning the circumstances in which the complainant lived in the Green household. It was submitted that persons who took a number of those notes could have given relevant evidence directly bearing on those matters; and, in particular, on the circumstances in which the complainant broke her leg, and the circumstances in which the complainant attended at the Social Welfare Department in company with Trevor Armstrong, when, she alleges, she reported to the Department that she had been sexually abused by the applicant. In addition, there are no medical records available relating to the circumstances in which the complainant broke her leg, so that it is not possible for the applicant to explore whether the injury could have been caused in the manner alleged by the complainant.

The submissions by counsel for the applicant focussed principally on the nature of, and issues relating to, the complainant’s memory. Counsel contended that the memory of the complainant is demonstrably poor. He contended that the evidence of Ms Vernieux and Dr Gibbs is relied on in support of that proposition. In particular, counsel referred to the opinion of Dr Gibbs that there were features of the complainant’s evidence that were suggestive of recovered or ‘new’ memories. In this context, counsel for the applicant pointed to a number of aspects in which the evidence given by the complainant in the special hearing was inconsistent with the account given by her in the VARE recordings of the circumstances in which she alleges that the applicant sexually assaulted her. In particular, it is noted that in her booklet ‘My Silent Tears’, the complainant claimed that she was raped in the incident in which her leg was broken. In the first and second VAREs, the complainant described that incident, but did not allege, in either VARE, that she was raped on that occasion. There were also inconsistencies in the accounts given by her in the two VAREs. In cross-examination the complainant conceded that she was wrong when she had written in ‘My Silent Tears’ that she had been raped on that occasion.

Further, counsel for the applicant pointed out that when the complainant was asked as to which event occurred next after the events that constituted charge 7, she nominated the circumstances that gave rise to charge 13. She could not recall, without prompting, the events that were said to have given rise to charge 9. She could only recall being tied up by the applicant on one occasion, whereas in fact she alleged that occurred on two occasions, namely in the circumstances that gave rise to charges 8 and 9 respectively. In the special hearing, the complainant said that the events giving rise to charge 13 were the first occasion in which the applicant had put his penis in her mouth. On the other hand, in the VAREs, the complainant had said that that had taken place in the circumstances giving rise to charges 10 and 11, which occurred before the events alleged in charge 13. In addition, when the circumstances, said to constitute charge 12, were put to the complainant at the special hearing, she said she could not recall them. When the complainant described the circumstances of the event that was the foundation of charge 16, she described an allegation of penile penetration of the anus, which was inconsistent with the description of the circumstances contained in her VARE. The complainant could only recall the events that gave rise to charges 19, 20 and 21 after being prompted by counsel in cross-examination.

It was thus submitted on behalf of the applicant that the complainant’s memory is inherently unreliable. As a consequence of her poor memory, and the delay, the applicant has been denied the opportunity to meaningfully cross-examine the complainant on a number of the serious charges. In particular, it was contended that, at the special hearing, counsel for the applicant experienced difficulty cross-examining the complainant because of the need to provide the complainant with frequent breaks in order to cater for her physical and psychological issues. Counsel accepted that, after each break, the complainant was able to be readily directed to the matter which was the subject of the questioning before the break. Nevertheless, it was submitted, the need to provide the complainant with regular breaks interrupted the flow, and adversely affected, the import of the cross-examination.

In support of ground 2, counsel for the applicant relied on the passage from the judge’s ruling in which she stated that ‘…. even recognising the weaknesses in the complainant’s evidence, it could not be said in respect of all the charges that acquittals were inevitable’. Counsel acknowledged that the judge was not invited to stay individual charges, but nevertheless submitted that the judge erred in not indicating which of the charges she considered to be foredoomed to failure.

Ground 3 is based on the comment by the judge, in her ruling, that the inconsistencies in the complainant’s evidence, and the failure by her to recollect details of events, were consistent with many witnesses in her situation, and the fact that she found the process of giving evidence stressful was not an unusual response for people in her position who have been cross-examined. Counsel for the applicant submitted that the judge erred in her assessment of the unreliability of the complainant. It is submitted that, at the special hearing, the complainant could not recall the facts, said to constitute serious charges (charges 8 to 11, 19, 20 and 21), and that she could not recall the events, said to give rise to charge 12 and charge 16, at all. Thus, it was submitted that the complainant’s memory was significantly more defective than usual.

In response, counsel for the respondent submitted that none of the possible witnesses, who are now deceased, were alleged to be direct witnesses to any of the offending by the applicant, so that the unavailability of those persons does not go to the root of the trial. The Social Welfare Department notes are conceded as accurate by the respondent, and the complainant has explained that she acted as if she were happy in the foster placement, because of fear of her foster mother. Accordingly, it is submitted, the evidence of the persons responsible for taking those notes would have been of limited utility to the applicant.

In addition, it is pointed out that, having heard the cross-examination of the complainant as well as the two expert witnesses, Ms Vernieux and Dr Gibbs, the judge preferred the evidence of Ms Vernieux. The judge had noted that Dr Gibbs did not personally observe or assess the complainant, but formed his opinion only after a consideration of the transcript and the reports. The evidence of Dr Gibbs rose no higher than the proposition that the complainant had features consistent with recovered memory. The fact that the complainant reported to Trevor Armstrong, in the early 1970s, that she had been sexually abused by the applicant, is in contrast with cases of complainants who have recovered or suppressed memories. In the present case, the complainant’s memory function, including its limitations, will be the subject of expert evidence to assist the jury in the trial.

Counsel for the respondent further submitted that the extent of any inconsistencies between the complainant’s VARE evidence, and the special hearing, are matters for the jury in forming its assessment of the complainant’s credibility and reliability. It was pointed out that the complainant gave evidence over a period of five days at the special hearing, and, in light of her various medical conditions, and short term memory impairment, she was nevertheless able to remember specific occasions usually when prompted very little by the cross-examiner. Accordingly, it was submitted, it was open to the judge to find that the complainant’s limitations were due to confusion owing to her cognitive impairment, fatigue or stress.

In respect of the witnesses who are no longer available, counsel for the respondent pointed out that the applicant’s mother would never have been available in any trial, even if the prosecution had not been delayed, because she died in 1971. On the other hand, Patricia Green and the complainant’s brother are available to give evidence as to the circumstances that prevailed in the Green home at the time of the offending. It was submitted that any prejudice suffered by the applicant as a result of the unavailability of witnesses such as Mr and Mrs Green could be adequately catered for by an appropriate forensic disadvantage direction given to the jury.

Counsel further submitted that, at the special hearing, counsel for the applicant did not labour under any particular disadvantage in cross-examining the complainant. After each break, the cross-examination was able to resume without any particular evident difficulty. Indeed, counsel was able to cross-examine the complainant in detail relating to the incidents alleged by her, with some effect. Accordingly, it was submitted, no particular disadvantage redounded to the applicant as a result of the memory difficulties that were the subject of consideration by Ms Vernieux and Dr Gibbs.

In respect of ground 2, it is pointed out by the respondent that the applicant did not apply for a stay of specific charges. The judge’s finding that ‘it could not be said in respect of all charges that acquittals were inevitable’, did not necessarily mean that the judge was of the view that in any of the charges acquittals were inevitable. In respect of ground 3, it was submitted that the judge was in the best position to form a view of the evidence of the complainant, and that the matters relied on by the applicant did not reveal any error on the part of the judge in the exercise of the discretion to refuse the stay.

Legal principles

The power of a court to order a stay of a proceeding is discretionary. Thus, in order to succeed on this application, the applicant must demonstrate that there was a relevant error by the judge in the exercise of the discretion to refuse the stay, according to the principles stated by Dixon, Evatt and McTiernan JJ in House v The King.[5]
[5](1936) 55 CLR 499, 505; see Joud v The Queen (2011) 32 VR 400, 440 [132]–[133] (Neave JA); R v FJL (2014) 41 VR 572, 578 [31] (Osborn JA) (‘FJL’); Hermanus (A Pseudonym) v The Queen (2015) 44 VR 335, 341 [38] (Priest JA) (‘Hermanus’); Jones (A Pseudonym) v The Queen [2017] VSCA 111, [43] (Whelan and Ferguson JJA and Kidd AJA) (‘Jones’).

During the last four decades, the principles, concerning the grant of a stay of a criminal proceeding, have been considered in a number of High Court cases, commencing with Barton v The Queen,[6] and including Jago v District Court of New South Wales,[7] R v Glennon,[8] Walton v Gardiner,[9] R v Edwards[10] and Dupas v The Queen.[11] The principles, applicable in a case such as the present, were discussed by Osborn JA (with whom Redlich JA and Sifris AJA agreed) in R v FJL.[12] Subsequently, in Hermanus, Priest JA extracted and stated them by reference to six propositions, in the following terms:
[6](1980) 147 CLR 75 (‘Barton’).
[7](1989) 168 CLR 23 (‘Jago’).
[8](1992) 173 CLR 592 (‘Glennon’).
[9](1993) 177 CLR 378.
[10](2009) 255 ALR 399 (‘Edwards’).
[11](2010) 241 CLR 237 (‘Dupas’).
[12](2014) 41 VR 572.

As I have said, the trial judge derived guidance from FJL. The following propositions may, I think, be drawn from the judgment of Osborn JA (with whom Redlich JA and Sifris AJA agreed) and the cases there cited:
•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.[13]

[13](2015) 44 VR 335, 342 [40]; see also Bauer (A Pseudonym) v The Queen (2015) 46 VR 382, 399–401 [94] (Priest JA); Jones [2017] VSCA 111, [8] (Whelan and Ferguson JJA, Kidd AJA); Brewer v The Queen [2017] VSCA 117, [48] (Maxwell P and Kyrou JA).

Thus, in determining the current application, it is important to bear in mind that a court should only intervene by staying a criminal proceeding in an exceptional case, where the applicant is able to demonstrate that the delay in the prosecution of the case has been productive of unfairness that goes to the root of the proceeding. That proposition was first articulated by Wilson J in Barton,[14] and was subsequently reiterated in a number of decisions of the High Court, including Jago,[15] Glennon[16] and Dupas.[17]
[14](1980) 147 CLR 75, 111.
[15](1989) 168 CLR 23, 31, 34 (Mason CJ), 75–76 (Gaudron J).
[16](1992) 173 CLR 599, 605–6 (Mason CJ and Toohey J).
[17](2010) 241 CLR 237, 245.

In determining whether such a degree of unfairness has been occasioned by the delay in commencement of the proceeding, the court must give full weight to the range of procedures available to a trial judge to alleviate or eliminate unfairness, including by making evidentiary rulings, and by giving appropriate directions to the jury.[18] In that respect, our system of justice operates on the basis that juries can, and do, ordinarily follow directions given to them by trial judges. That proposition is not an expression of pious hope, but rather is borne of long experience of the criminal courts in this State.[19]
[18]Jago (1989) 168 CLR 23, 46–47, 50 (Brennan J), 51 (Toohey J), 77 (Gaudron J).
[19]See for eg R v Dupas [No 3] (2009) 28 VR 380, 434-437 [204]–[218] (Weinberg JA), Jones [2017] VSCA 111, [43].

Finally, as noted by Priest JA in the fourth proposition stated in Hermanus (above), in order to be granted a permanent stay, it is not sufficient for the applicant to demonstrate that the delay in the prosecution of the case could, or might, result in unacceptable injustice or unfairness to him. Rather, the Court must be satisfied that the continuation of the proceedings would result in such injustice to him.[20]
[20]Edwards (2009) 255 ALR 399, 403 [23]–[24] (Hayne, Heydon, Crennan, Kiefel and Bell JJ).

Analysis and conclusions

The principal ground of appeal, relied on in this application, is ground 1. Before considering the issues raised in respect to that ground, it is convenient, first, to dispose, briefly, of grounds 2 and 3.

In our view, the submissions made, in respect of ground 2, are misconceived. Counsel for the applicant had contended, to the trial judge, that all of the charges, on the indictment, should be stayed. It was in response to that submission that the judge expressed the view that ‘… even recognising the weaknesses in the complainant’s evidence, it could not be said in respect of all of the charges that acquittals were inevitable’. In that way, the judge was not suggesting that she had formed the view that an acquittal was inevitable in respect of any of the charges. Rather, the judge was doing no more than rejecting the proposition that acquittals, in respect of all the charges, were inevitable. Accordingly, there is no substance in ground 2.

Ground 3 is directed to the assessment made by the judge as to the reliability of the evidence of the complainant. In particular, it is submitted that the judge underestimated the omissions and inconsistencies in the complainant’s evidence in cross-examination, by expressing the view that the complainant’s failure to recall details was consistent with many witnesses in the complainant’s situation, and that the fact that the complainant described the process of giving evidence as stressful was not unusual for people in her position when cross-examined.

The assessment of the reliability of the applicant, for the purposes of the stay application, essentially involved issues of judgment and evaluation. As such, it was a matter on which views may reasonably differ. In making that assessment, the judge had the advantage, not enjoyed by this Court, of viewing the evidence of the complainant as she was cross-examined.

Having reviewed the transcript, we consider that it was clearly open to the judge to evaluate the complainant’s evidence in the manner described in her ruling. It must be borne in mind that the complainant was called upon to give evidence, under cross-examination, over a period of five days. The transcript of the cross-examination exceeded 300 pages. In the course of the cross-examination, counsel questioned the complainant on matters of detail in respect of each incident. In addition, for most of the cross-examination, after the complainant was questioned about a particular incident, counsel then asked her to recall the next incident which occurred, without any prompting from counsel. That approach by counsel was entirely legitimate and appropriate. However, it must be borne in mind that the matters, now relied on in this application, as going to the complainant’s credit, occurred in the context of such a lengthy, detailed and challenging line of questioning.

It is not necessary, for the purposes of this application, to analyse, in detail, each of the points made by the applicant relating to the credit of the complainant. However, a few observations should be made. First, when asked to recall what was the ‘next incident’, the applicant correctly recalled the incident that constituted charges 1 to 3, the incident that constituted charge 4, and the incident that constituted charges 5 to 7, without prompting. At a later stage, in the cross-examination, she correctly recalled, without prompting, the incidents that constituted charge 15, charges 17 to 18, and charge 22.

It is correct that when asked to recall the incident that next occurred after charges 5 to 7, the complainant described the incident that constituted charge 13. After describing that incident, she stated that that was the first occasion upon which the applicant had ever put his penis into her mouth. Counsel then reminded the complainant of the circumstances alleged in charges 10 and 11, and the complainant, after prompting, did have a recollection of the incident constituting charge 10. In the next passage of cross-examination, when reminded that she had told the police about being tied up by the applicant, the complainant readily recollected and described the incident that constituted charge 9.

When asked about the next occasion, the complainant spontaneously recollected the incident that comprised charge 14. After a break in the cross-examination, and after being cross-examined about charges 8 and 9, counsel returned to that incident. After being reminded that she had given evidence, before the break, ‘about the anal penetration in the cubbyhouse’, the complainant then proceeded to describe the incident, which constituted charge 14.

Counsel then, having cross-examined the complainant about charge 15, asked her to describe the next incident. In response, the complainant described the incident that comprised charges 17 and 18. Counsel then told the complainant that she had described to the police another incident that had occurred one week earlier, and in doing so, read to the complainant part of what she told the police. The complainant stated that she did remember the incident. When she attempted to describe that incident, the complainant in fact described another incident, that involved anal penetration (which was not part of the charge 16 incident).

After the complainant was cross-examined about the incident comprising charge 22, counsel reminded her that there were two other incidents that she had told the police about. He read to her the description of one of those incidents that she gave to the police in detail, and which constituted charge 19. When asked whether she had a memory of that incident, the complainant recalled it, and gave details as to the circumstances in which the applicant had found her, hiding from him in the rain. Following that passage of cross-examination, counsel then asked the complainant whether she recollected the last occasion upon which the applicant sexually assaulted her, before the incident in which he punched her to the stomach, comprising charge 22. In response, the complainant described the circumstances that constituted charges 20 and 21.

That short analysis, of the cross-examination of the complainant, does reveal that there were some inconsistencies between the account given by the complainant to the police in the VAREs, and the evidence that she gave in cross-examination. Further, when asked to recall, sequentially, various incidents, she did make errors, omitting some of the incidents. It may also be fairly concluded that she did not have any recollection, in cross-examination, of the incident comprising charge 12 and of most of the circumstances comprising charge 16. However, it must be acknowledged that the complainant was being cross-examined in detail over a long period of time. She was being asked to recall events that occurred a long time ago. She does have difficulties with her memory. The judge was entitled to take into account that, as with most witnesses in the position of the complainant, she was under some stress when being cross-examined. Taking those matters into account, it could not be maintained that the judge’s assessment of the complainant, as a witness, for the purposes of the stay application, was affected by any error. Accordingly, ground 3 of the application is not made out.

We turn, then, to ground 1. As mentioned, in order for the applicant to succeed on this ground, it must be demonstrated that it was not open to the judge to conclude that the disadvantages, relied on by the applicant, amounted to such a defect in the trial that directions could not be given to sufficiently alleviate any unfair consequences resulting from them.

The starting point, in respect of that issue, is, of course, the very long period of delay between the events described by the complainant, and the commencement of the prosecution against the applicant in 2015. In broad terms, that period of delay amounted to between 52 years (in respect of charges 1 to 3) and 44 years (in respect of charge 22) from the events described by the complainant until the commencement of the prosecution. While, on an application such as this, it is ordinarily not sufficient for an accused person to rely on a presumption of prejudice resulting from a long period of delay, nevertheless, in this case, the very long period is the necessary backdrop to the specific aspects of prejudice raised by the applicant.

It is in that context that the unavailability of Mrs Green, the foster mother, is of particular moment. On the account given by the complainant, Mrs Green was the central figure in the setting in which, it is alleged, the applicant sexually abused her. In particular, the description by the complainant of the appalling treatment allegedly meted out to her by Mrs Green constituted the context in which the offending took place. On the complainant’s version of the events, she was treated as less than human by Mrs Green. In a sense, the offending by the applicant was described as part of the miserable existence inflicted on the complainant by Mrs Green. In the VAREs, and in the special hearing, the complainant explained that she did not complain, to Mrs Green, or to other persons, of her abuse by the applicant, because she was fearful of repercussions at the hands of her foster mother. In addition, in the third VARE, the complainant suggested that the foster mother was aware of what the applicant was doing to her, at about the time of the events that constituted charges 8 and 9.

In those circumstances, if she had been alive, Mrs Green would have been a central witness in the case. Her absence, due to her death in 1971, would constitute a significant disadvantage to the applicant in defending the charges against him. It is, of course, to be acknowledged that the loss of Mrs Green, as a witness in the proceeding, was not due to any delay in the institution of charges against the applicant. Nevertheless, the point remains that in any criminal proceeding based on the allegations made by the complainant, the applicant would be at a significant disadvantage because of the absence of his mother as a witness as to the matters to which we have just referred.

Further, it is in that context that the subsequent death of Arthur Green, the foster father, constitutes a greater disadvantage to the applicant than if his mother were still alive. While Arthur Green was working at the time, and was evidently quite busy, nevertheless it is inconceivable that, if the circumstances in the Green home were anything like that described by the complainant, Arthur Green would not have been fully aware of them.

Throughout her evidence, both in the VAREs, and in cross-examination in the special hearing, the complainant described Arthur Green as a decent and kind person, who never did any wrong to her. Although his work commitments might have kept him away from the home sufficiently to enable some of the incidents and conduct, alleged by the complainant, to have occurred without his knowledge, it is most unlikely that he would not have been conscious of the general circumstances in which the complainant was forced to live in the Green home, if the complainant’s version of events were true. Indeed, the complainant alleged that she was shut out from watching the television in the family room, that she was made to sit on the floor of the car when the family were driving, and that she was subjected to strict discipline by Mrs Green. It is highly improbable that Arthur Green would have been entirely oblivious to those matters, if the complainant’s version of events were true. As we stated, the circumstances in which the complainant was living in the Green house, as described by her, are an integral concomitant of the circumstances in which she claims to have been sexually abused by the applicant. They are not a matter of peripheral detail, but rather of some central importance in the outcome of the charges brought against the applicant.

It is thus clear that Mr Green would have been an important witness, if the case had been commenced against the applicant without undue delay. The fact that he is not available to give evidence, on behalf of the applicant, is a significant disadvantage, impacting on the applicant’s right to a fair trial.

Certainly, as counsel for the respondent has pointed out, both Patricia Green and Jacob Rodgers are available to give evidence in the trial, including evidence as to the circumstances at the Green household during the time period in question. However, their evidence, on the critical aspects of the case, is relatively limited. Each of them have provided a statement to the police. In her statement Patricia Green described her mother as ‘fairly firm and strict’. She has not descended into any detail relating to any of the allegations made by the complainant about the conduct of Mrs Green or her treatment of the complainant. At the conclusion of her statement, she said that the first thing she knew anything about the allegation of sexual abuse of the complainant by the applicant was when the police spoke to her. However, her evidence does not address any of the issues relating to the general context in which the offending is alleged to have taken place, nor of the issues relating to the specific circumstances in which the complainant alleges she was abused by the applicant.

The statement of Jacob Rodgers, in that respect, is even more limited. His statement did not address any of the issues relating to the treatment of the complainant by Mrs Green, nor the allegations made by the complainant against the applicant. After Mrs Green died, he recalled staying at the home of Mr and Mrs Bailey, but he does not recall returning to the Green home after that.

Taken together, while the evidence of Patricia Green and, to a lesser extent, Jacob Rodgers, might be of relevance to the general allegations made by the complainant about the circumstances in which she lived in the Green home, their evidence is necessarily limited, both by reason of their ages at the time, and their circumstances then. The availability of those witnesses, thus, only offsets the disadvantage, arising from the loss of Mr Green as a witness, to a limited degree.

In addition, there were other witnesses and items of evidence, no longer available, due to the delay in the commencement of the criminal charges against the applicant. Investigations have revealed that the school, attended by the complainant, no longer holds any records relating to her, and that the teacher, to whom she complained (Mrs Smith) is no longer alive. Accordingly, there is no evidence, available from that source, to either confirm or contradict her claim that she did make a complaint to Mrs Smith at the school about her treatment at the Green household. Thus, at the trial, the applicant would not be in a position to contest, or contradict, the complainant’s evidence that she did make such a complaint.

It is also accepted that the authors of the various file notes, contained in the Social Welfare Department records, relating to the complainant, are no longer available to give evidence. Counsel for the respondent is correct in contending that, to some extent, that may redound to the advantage of the applicant, since the notes are, almost entirely, inconsistent with the claim by the complainant that she was mistreated in the Green household, and that she was fearful of Mrs Green. Nevertheless, the authors of those notes would, potentially, have been important witnesses in respect of that issue if they were available.

The earliest note in the Social Welfare Department records relates to a visit made by a police woman Cochrane at Flemington Women Police to the Green house, following an anonymous letter to the Department claiming that the complainant, and her two brothers, had been neglected. The short note of Constable Cochrane was that there was no foundation for the complaint, and that the three children ‘appeared to be happy with Mrs [Green] and well cared for’. If Constable Cochrane were still available, she might be able to expand on that observation, in a manner which, we apprehend, would be favourable to the applicant’s case.

Subsequent notes contained in the Department’s files, at about that time, directly contradict the claim by the complainant that she was mistreated in the Green home. A note dated 8 June 1961 described a visit by a member of the Department to the school, where the writer talked to the complainant, who told the writer that she ‘loved living with the [Greens]’. The note recorded that the complainant looked well and happy. In the same vein, a letter by a Department officer M E Collins dated 5 September 1961 recorded a visit to the Green house, which stated (inter alia) ‘the children appear very fond of their foster mother and she of them’. A similar note was made, by the same writer, five months later on 21 November 1961. Subsequent notes, at about the same time, are generally to the same effect. Again, the authors of those notes might have assisted the applicant’s case by describing the appearance of the complainant, and as to whether they had any grounds for suspecting that the complainant was fearful or apprehensive of her foster mother.

It is not necessary to rehearse all of the notes. Some subsequent notes do refer to some behavioural issues which, it may be remarked, are not entirely unusual for a young teenager. However, none of them record any concern by the Department as to the circumstances in which the complainant was living, or as to any issue that the complainant had with her life in the Green household.

In this respect, of particular relevance is the note of Mrs Rusden dated 5 June 1972, to which we have earlier referred. As stated, that note records that the complainant did not go home on the previous night, but she stayed with friends of Trevor. It also recorded that a decision was made for the complainant to stay with her mother (Mrs Lawson) until issues were resolved between the complainant and Patricia. As we have mentioned, the whole gravamen of the note concerned friction that had arisen between the complainant and Patricia. Contrary to the account given by both the complainant in her evidence, and by Trevor Armstrong in his statement, there was no mention of any allegation that the applicant had interfered with or sexually abused the complainant. Further, and inconsistent with the account given by the complainant and Trevor Armstrong, they did not visit the Family Welfare Division office on their own, but, rather, the complainant’s mother and the applicant were also present at the meeting.

Certainly, the note is admissible in evidence. In cross-examination, the complainant did not take issue with the contents of the note, but she said that she and Trevor Armstrong visited the offices of the Family Welfare Division on a different date. The author of the note, Mrs Rusden, would have been a relevant witness in relation to that question. There was no note of any such other visit made by the complainant and Trevor Armstrong at about that time. If the prosecution had been commenced earlier, it is possible that Mrs Rusden, or another officer of the Department, might have been in a position to give evidence as to the note taking requirements of officers of the Department, and as to whether it was possible that any other such visit did take place.

This aspect of the case is important. If the applicant were in a position to decisively contradict the evidence, not only of the complainant, but also of Trevor Armstrong, in relation to the alleged visit by them to the Department, potentially that could adversely affect Trevor Armstrong’s credibility as a witness as to the complaints that he said were made to him by the complainant concerning sexual abuse by the applicant. On the account given by the complainant, and by Trevor Armstrong, she made an early complaint of such sexual abuse to Trevor Armstrong, in early 1971. Thereafter, there is no record, or evidence, of any complaint made by her, or mention by her, of abuse of her by the applicant, until she wrote the journal ‘My Silent Tears’. In that way, the absence of witnesses from the Family Welfare Division of the Social Welfare Department, and in particular Mrs Rusden, is a material disadvantage to the applicant in the defence of the charges.

As stated, the next occasion upon which the complainant made any further mention of the abuse of her by the applicant was when she wrote the booklet ‘My Silent Tears’ in the early 1990s. In the fifth VARE, she said that at that time she was seeing a psychiatrist or a psychologist at St David’s Care, who told her to ‘write it down when you get really really angry, I want you to line up your pillows on your bed … don’t care if they’re six deep and then use it as a punching bag and just get it out’. At the special hearing, and in cross-examination, she said that her doctor had referred her to the psychologist, who suggested that she put her feelings onto paper. The circumstances in which the complainant wrote the booklet, and any discussions between her and her counsellor before she commenced the task, or while she was undertaking it, would potentially be of relevance in evaluating the references in the journal to abuse of her by the applicant. As noted, Dr Gibbs was of the view that records of the psychologist at that time were ‘critical’, to assist in an evaluation of the processes by which the complainant wrote the journal, and recorded in it the abuse which she claimed had been perpetrated by the applicant.

The defence in this case has sought to subpoena the records of St David’s Care, and also of South Eastern Centre Against Sexual Assault (SECASA), but there was a ‘nil return’ in respect of both subpoenas. Thus, there is no evidence, or record, relating to the circumstances in which the complainant wrote ‘My Silent Tears’.

The absence of those records, and that evidence, is of some importance. As noted, the first occasion upon which the complainant made a complaint, of abuse of her by the applicant, was when she told Trevor Armstrong. Apart from recording the complaint in ‘My Silent Tears’, it appears that she did not tell anyone else about the applicant’s abuse of her until many years later. In her evidence she stated that she told her sister-in-law, Cindy Rodgers, of the abuse in about 2000. In her statement to the police, Cindy Rodgers stated that at one stage she had a talk with the complainant which left her with an uncomfortable feeling, but she was unable to recall what the complainant had told her. Jacob Rodgers, in his witness statement, stated that at a later time, the complainant telephoned him and told him that the applicant had sexually abused her as a child. She was insistent that Jacob should remember something about that, but he had no memory of what she was talking about. The complainant told him that she was going to speak to the police about it. Thus, it would appear that the phone call occurred in about 2014.

It is in that context that the circumstances in which the booklet ‘My Silent Tears’ was written are of some relevance to the case. The fact that there is no evidence available, by way of records or otherwise, of the psychologist who encouraged the complainant to write the book, is of potential relevance to the trial. The absence of that evidence constitutes a material disadvantage to the applicant in the defence of the charges against him.

It is clear, from the foregoing analysis, that, as a result of the delay in the prosecution of the charges against the applicant, a number of important witnesses, and items of evidence, are missing, which could potentially have played a material role in the defence of those charges. Taken individually, most of those matters would not, singularly, have been sufficient to constitute prejudice to the applicant which could not be sufficiently redressed by an appropriate direction given by the judge to the jury. However, taken in combination, they do constitute a significant disadvantage to the applicant in the defence of the case. If the trial were to proceed, it would be conducted in circumstances in which important evidence and witnesses were missing, who could otherwise have been of material importance to the defence of the case.

It is in this context that the matters raised concerning the memory of the complainant are relevant. For the purposes of determining this application, it is not necessary to resolve the question whether the evidence of Dr Gibbs is sufficient to demonstrate that the complainant is in fact recounting ‘recovered’ or ‘repressed’ memory. The tests conducted by Ms Vernieux do demonstrate that the complainant suffers from a number of medical and psychological issues, including cognitive impairments, which necessarily raise issues concerning the validity and reliability of her memory and recall. In a case involving a complaint of sexual abuse, particularly where the complainant and indeed the accused were young at the time, made half a century later, the issues relating to the complainant’s memory, and of her cognitive difficulties, render all the more relevant the fact that key witnesses and evidence are no longer available as a consequence of the delay in the prosecution of the case.

It is also of note that, perhaps surprisingly, the complainant was able to give quite detailed accounts of the circumstances comprising each of the incidents that are the subject of the charges, in the course of the five VAREs conducted on her. Experience demonstrates that, not uncommonly, where a complainant or witness gives such a detailed account of events, it can be contradicted, sometimes critically, if the relevant evidence and witnesses, necessary for that contradiction, are still available. In the present case, some of the detail given by the complainant, as to the circumstances in which she lived in the Green home, and as to the circumstances in which she alleges that she was abused by the applicant, might have been able to be investigated, if the charges had been brought much earlier against the applicant. It is not realistic to suggest that such an investigation could be usefully undertaken so long after the events described by the complainant.

Thus, taken in their totality, the disadvantages that we have referred to constitute a significant prejudice to the applicant, should the trial be permitted to proceed. Certainly, each of the matters, to which we have referred, could be the subject of particular direction to the jury, particularly addressing the forensic disadvantage suffered by the applicant. However, we do not consider that such directions could sufficiently overcome the total effect of the several disadvantages to which we have referred. In addition, in order to address each of those disadvantages, a significant number of directions would need to be given to the jury. Experience demonstrates that, in a criminal trial, there comes a point where, if a judge gives too many such directions, their impact on the jury would be correspondingly diminished.

We are fully mindful that the charges against the applicant are serious. There is an important public interest that charges, involving such matters, be disposed of in court. However, this is an exceptional case. As we have noted, the delay is particularly long. No excuse has been put forward by the prosecution as to why the charges could not have been brought earlier. So much was properly conceded by counsel for the respondent. The prejudice to the applicant, resulting from that delay, is not simply presumptive, but actual and substantial. In our view, the combined weight of that prejudice necessarily strikes at the very heart of the applicant’s right to a fair trial. We do not consider that it could be sufficiently offset by appropriate directions to a jury. Notwithstanding any such directions, we consider that a trial of the charges brought against the applicant would be so unfair as to result in a process which would be quite alien to the fundamental principles that underlie the system of justice administered in this State.

For those reasons, we consider that the application for leave to appeal should be granted, the appeal allowed, and that the Court should order that the charges against the applicant be permanently stayed.

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Appeal
Limitation Periods
Refusal of application for permanent stay of proceedings
Refusal to certify for interlocutory appeal

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Citations

Green (a pseudonym) v The Queen [2017] VSCA 277

Most Recent Citation

Director of Public Prosecutions v Colonomos (a Pseudonym) [2019] VCC 795

Cases Citing This Decision

12

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Bennett (a pseudonym) v The King [2025] VSCA 208

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Cases Cited

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Statutory Material Cited

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Joud v The Queen [2011] VSCA 158

Cited Sections

[2017] VSCA 277

28 September 2017

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Appeal

Limitation Periods

Refusal of application for permanent stay of proceedings

Refusal to certify for interlocutory appeal