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Green (a pseudonym) v The Queen

Green (a pseudonym) v The Queen

Case [2017] VSCA 277 28 September 2017

Appeal

Limitation Periods

Refusal of application for permanent stay of proceedings

Refusal to certify for interlocutory appeal

Criminal Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Green (a pseudonym) v The Queen

Details

AGLC: Green (a pseudonym) v The Queen [2017] VSCA 277
Case: [2017] VSCA 277
Decision Date: 28 September 2017

CaseChat Overview and Summary

The appellant, identified as Green, appealed against the decision of the Court of Appeal of the Supreme Court of New South Wales, which had refused his application for a permanent stay of criminal proceedings against him. The alleged offences were sexual in nature and were said to have occurred more than four decades prior to the commencement of the proceedings. The primary issue for determination was whether the combination of the significant delay in bringing the charges and the unreliability of the complainant as a witness warranted the grant of a permanent stay of proceedings. Additionally, the court needed to consider whether Green had suffered irremediable prejudice due to the delay.

The Court of Appeal had previously considered the question of delay and unreliability but had concluded that these factors did not justify a permanent stay. The High Court, however, took a different view. It held that the delay in prosecution, coupled with the unreliability of the complainant, did indeed justify a permanent stay of proceedings. The Court found that the delay had resulted in substantial prejudice to the appellant, making it highly likely that a fair trial would be impossible. Furthermore, the unreliability of the complainant, due to the passage of time and potential memory issues, compounded the prejudice to the appellant.

Consequently, the High Court allowed the appeal and granted leave to appeal. The Court ordered that the proceedings against Green be permanently stayed, effectively terminating the prosecution. This decision underscores the importance of timely prosecution and the potential impact of significant delays on the fairness of criminal proceedings.

Orders