Haris (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0036

ADAM HARIS (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]In order not to prejudice the administration of justice and/or identify the complainant in a case of alleged sex offending, a pseudonym has been used in the place of the name of the applicant and the reasons have been prepared in a form which omits identifying details.

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JUDGES:	EMERTON P, BEACH and McLEISH JJA
WHERE HELD:	Bendigo
DATE OF HEARING:	23 August 2023
DATE OF JUDGMENT:	4 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 205
JUDGMENT APPEALED FROM:	DPP v [Haris] (unreported, County Court of Victoria, Judge Carlin, 17 March 2023)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Permanent stay – Statement of witness containing first-hand hearsay becoming inadmissible when maker unavailable – Whether inadmissibility of second-hand hearsay required criminal proceeding to be permanently stayed – Whether primary judge erred in conducting an analysis of the evidence – Whether primary judge erred in her analysis of the evidence – Whether primary judge erred in not analysing evidence from defence perspective – Whether appropriate for primary judge to consider veracity and reliability of unavailable evidence – No error in primary judge’s refusal of application for permanent stay – Application for leave to appeal refused.

Dupas v The Queen (2010) 241 CLR 237, McGee (a pseudonym) v The Queen [2020] VSCA 146, Morton (a pseudonym) v The Queen [2020] VSCA 49, R v Edwards (2009) 83 ALJR 717, R v FJL (2014) 41 VR 572, R v Glennon (1992) 173 CLR 592, Walton v Gardiner (1993) 177 CLR 378, referred to.

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Counsel
Applicant:		Ms GF Connelly with Mr SL Collins
Respondent:		Mr BF Kissane KC with Mr J Johnston
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
BEACH JA
MCLEISH JA:

The applicant is facing trial in the County Court on a single charge of rape, contrary to s 38(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.
Before the commencement of his trial, the applicant applied for a permanent stay on the ground of ‘irreparable prejudice to his defence, based on a subsequently inadmissible out-of-court confession made by a non-party’. As summarised by the applicant in his application to the primary judge:
Neither the confessor, KH, nor the person to whom he made the confessional statement, ZA, is now ‘available’ within the meaning of the Evidence Act for the trial — KH is deceased; and ZA has left the country and lost touch with the parties. Therefore, there appears to be no basis to admit ZA’s statement, despite its relevance, and it is this which causes the accused incurable unfair prejudice in his defence.
The primary judge refused the stay application,[2] but certified under s 295(3)(b) of the Criminal Procedure Act 2009 that her decision refusing a stay was ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.
[2]DPP v [Haris] (unreported, County Court of Victoria, Judge Carlin, 17 March 2023) (‘Ruling’).
Pursuant to s 295(2) of the Criminal Procedure Act, the applicant seeks leave to appeal against the primary judge’s decision refusing a permanent stay on a single proposed ground of appeal that it was not reasonably open to the primary judge to refuse the application for a permanent stay.

Summary of prosecution case

The charged offence is alleged to have occurred in the early hours of 20 October 2016.[3] At the time, the complainant was aged 18, and the applicant was aged 36. The complainant has a mild intellectual disability and, at the time of the alleged offence, lived with his mother and his younger brother.
[3]While the indictment pleads that the rape occurred on 19 October 2016, from the summary of prosecution opening it is apparent that the prosecution case is that the rape occurred at about 3.00 am on the next morning.
On the evening of 19 October 2016, the complainant (who was in the company of two friends) met up with the applicant (who was with his friends, KH and another male not known to the complainant). The complainant and the applicant knew each other, having first met some four or five months earlier.
During the course of the evening, the complainant drank a considerable quantity of alcohol and became heavily intoxicated. At some point, the complainant was taken to or went back to the applicant’s apartment. The apartment was a one-bedroom unit with one bed. It had a loungeroom containing a couch, a bathroom and a kitchen.
The complainant has little recollection of the events on the night in question. He recalls waking up at the applicant’s unit at about 3.00 am. He was lying on a single-seat couch in the loungeroom. The prosecution case is that the complainant woke up to the applicant whispering in his ear, ‘I love you’, or words to that effect. The complainant then felt the applicant’s hands in his pants, before the applicant digitally penetrated his anus (charge 1 — rape). The complainant got up and the applicant turned on the light. The complainant said that he had to go home. The applicant asked him to stay, but the complainant left the unit and walked home.
A few weeks later, the complainant told his sister what had happened. He told her that when he woke up, a person who he described as ‘the Asian’ had his hand down the back of his pants before putting ‘his finger in his butt’. Subsequently, the complainant recounted these events to his mother, telling her that the person who penetrated his anus had whispered ‘I love you [complainant’s first name]’, before the complainant turned and saw that it was the applicant.
On 1 December 2016, the complainant reported the matter to police. He described waking up ‘in Ali’s unit’ (‘Ali’ not being either the applicant’s first name or surname) at about 3.00 am, after having become drunk the night before, and finding ‘Ali standing near him, trying to put his finger in his bottom’. He also said that he remembered ‘two other Asian males that were with Ali at some stage on the day of the incident, whose names were possibly Isa and Kefa’.
On 13 January 2017, a Video and Audio Recording of Evidence (VARE) statement was conducted by police. On 22 August 2017, the applicant was arrested, and a record of interview conducted. Subsequently, the applicant was charged with the rape in respect of which he is currently facing trial.

The VARE (January 2017)

In his VARE, the complainant described what he remembered of the evening of 19 October 2016. He said that he ‘ended up passing out’ and then he later woke up in the applicant’s unit. He said he was lying on a single-seat couch and the applicant ‘was whispering stuff into my ear, saying, “I — I — I love you”, or something’. The complainant described the alleged offending in the following terms:
And — and then I could feel something — like, hands in my pants and — and, like, I was on the side that was dark and he had two other mates with him, their names is [sic] Isa[4] and Keefer.[5]
…
That’s what he said, and he had his — he had his hands in my pants and then he — he pushed his finger in my arse and I, like, moved straight over and I’m like, ‘I gotta go back home to mum’, coz I was scared.
…
It was about three in the morning, so I ended up going back and not telling anyone … .
[4]In the VARE transcript, ‘Isa’ was typed as ‘Izza’.
[5]Before the primary judge, and in this Court, the parties accepted that the reference to ‘Keefer’ was a reference to KH. While the applicant submitted to the primary judge that the reference to ‘Isa’ was most likely a reference to ZA, in this Court, the parties agreed that there is no basis upon which it can be concluded that Isa is ZA.
During the VARE, the complainant referred to his assailant as ‘Ali’. He said his name was Ali, but that ‘his real name’s [applicant’s first name] or something’, before then stating a surname that was close in sound to the applicant’s but not entirely correct.
The complainant said that there were ‘two other Asians’ in the bedroom of the unit, while the applicant was out in the loungeroom with the complainant when the alleged offence occurred. The complainant said that had known the applicant for ‘probably only four months, five months’.
The complainant was asked how he knew it was ‘Ali’ who had offended against him. He replied:
Because he — he would always, like, say, ‘I love you’, and stuff, ‘I love you’, and — and — and it was just not on.

The record of interview (August 2017)

In his record of interview, the applicant said that he took the complainant back to his unit in a taxi. He helped the complainant to lie on the sofa bed (couch) in the loungeroom, before he (the applicant) then went to bed in the bedroom where he slept that night.
The applicant denied all of the allegations made against him by the complainant. He said that the complainant left the next morning. He said that the complainant said that he was going home. The applicant said that he suggested to the complainant that maybe he could stay and then go home later, but the complainant said, ‘No, if I don’t go home now, my mother would kill me’.

KH’s statement to police (October 2017)

On 27 October 2017, police took a statement from KH. In his statement, KH said:
•he used to live with the applicant in the applicant’s one-bedroom unit;
•the applicant would sleep in his bed, and he (KH) would sleep on the floor;
•the applicant would not always sleep in the bedroom, sometimes he would sleep in the loungeroom on the couch;
•the applicant often went drinking and would bring people back to the unit;
•he (KH) would not always see them as he was sleeping in the bedroom;
•he did not know the complainant; and
•he had ‘no information about anything relating to [the applicant] and an incident at our home’.

KH’s alleged confession (June/July 2019)

The applicant alleges that in about June or July 2019, in a conversation on the street between himself, KH and ZA, KH confessed to penetrating the complainant’s anus with his finger when the complainant stayed overnight at the unit. Shortly after this alleged conversation, KH died. It is this alleged conversation, as it was recorded in a subsequent statement made by ZA to police, which is the subject of this application for leave to appeal.

ZA’s statement to police (January 2020)

The applicant’s committal occurred on 9 October 2019. On that day, it appears that ZA attended court with, and in support of, the applicant. The informant was told that ZA had ‘relevant information to give [him] in relation to this matter’. In cross-examination at the committal, the informant said that he had taken ‘some details from [ZA]’, and that he would ‘seek to speak to him and take a statement from him’ subsequently. It appears that there was then some delay in the taking of the statement from ZA, because ZA gave the informant incorrect contact details (the telephone number ZA gave the informant was subsequently found to have been disconnected, and the address he gave was not his correct address).
On 3 January 2020, ZA gave a statement to police. In his statement he said that he was a friend of the applicant and a friend of KH, who had died ‘a couple of months ago’. ZA described meeting the applicant in Adelaide ‘a couple of years ago’; and meeting KH in Dandenong, also ‘a couple of years ago’. The substance of ZA’s statement was as follows:
5.About 6 or 7 months ago, maybe more I was sitting there, on Hemming Street where I used to sleep. [KH] was there sitting with me. [KH] was drunk. He was drinking every day. He would wake up and drink until he went to sleep. He would come and see me in the afternoon, every day.
6.[The applicant] came to see me. We were sitting down. I was in the middle, [KH] on the left, [the applicant] on the right. I asked [the applicant] where he came from, and he said from Swan Hill from court.
7.[The applicant] said to [KH], ‘you remember that boy [complainant’s first name]’.
8.[KH] started laughing and said ‘you remember that night, I give a finger to that boy, on that night.’
9.[The applicant] said to me, ‘Ali, listen to what he is saying’. He told [KH] to say again.
10.[KH] said again ‘I give him finger on that night’. Two three times he repeated that one.
11.They both told me the story. They were discussing what happened.
[The applicant] said: ‘How you do that when I sleep next to him?’
[KH] said: ‘On that time you were sleeping. He was also sleeping, the boy. Boy is on the couch and [the applicant] is on the floor. 1 gave the finger and I moved from there. [The applicant] wake up, and the boy wake up and he looks to see [the applicant]. He did not see me, he just see [the applicant].’
12.[The applicant] told me the reason he slept near [complainant’s first name] is because he knows [KH’s] habits. He wanted to look after him. He put him on the couch and sleep next to him.
13.When he said that he gave him the finger, I knew that meant he put his finger inside his arse. I didn’t ask any more explanation, but I knew his meaning.

Special hearing (July 2022)

Pursuant to s 370 of the Criminal Procedure Act, the complainant’s evidence was given at a special hearing conducted in July 2022. During the special hearing, the complainant’s VARE was tendered as his evidence-in-chief. He was then cross-examined, and subsequently re-examined.
In cross-examination, the complainant was asked whether he had met the applicant before the night in question. He said:
I had — I had, yeah, seen of him [sic] and, like sort of knew about him roughly, yeah.
He was asked whether he had met KH or Isa before the night in question. He said, ‘No’ in respect of both.
The complainant described the alleged offending in the following answers he gave to the following questions in cross-examination:
Okay. And when you woke up, did you feel — you knew you were on the couch. Did you feel anything?---Yes.
Okay. And when you woke up, did you hear anything?---Yes.
What did you feel, when you woke up?---I felt, um, [the applicant] — his fingers were — his hands were down my pants, the backside of me, so my — near the bum, and I could feel him touching my arsehole — around it, and then, straight away, he had shoved a finger in, and that had fully awared — awaked me. And then, at that point, I’d got up, and freaked out. And that’s when he had turned on the light.
And that’s when — sorry, I missed that?---That’s when [the applicant] had turned on the light.
All right. And I — okay. So – what did you hear, when you woke up?---I could hear, at — at the time that he had put his hands down my pants, and was touching me, he — he was — his head was, like, sort of near my head, and I could hear him whispering, ‘I love you’.
In cross-examination, the complainant said that, in addition to himself and the applicant, the applicant’s ‘two Asian mates’, KH and Isa, were present. He said that they were ‘in the first room straight next to the door, lying on a blow-up mattress with their shirts off’.
In relation to the lights being turned on after the alleged offending, the applicant was asked and answered the following question:
When you say — you told us, before, that the lights turned on, and you could see [the applicant] sitting in a recliner?---Well, yeah, he had — he had got up, turned the — like, turned the lights on, but he was — yeah — like, he was next to me, though, at that — at — when the lights were off, he was.
Yes. Right. So, you say — okay, I understand that?---Yep.
So, when [the applicant] was telling you to stay, was he in the recliner, or was he doing something else?---He was blocking — he was at the front of his doorway, blocking me off, not letting me out.
In the course of putting to the complainant the applicant’s response to the allegations made against him, the complainant was asked and answered the following questions:
Oh, well. Well — now, [the applicant] says that he did not touch your bottom, or put his finger in your bottom; is he right or wrong about that?---He’s wrong.
[The applicant] says that he did not whisper or say, ‘I love you’, while you were lying down on the couch; is he right or wrong about that?---He’s wrong; he did do that.
Nowhere in the cross-examination was it suggested to the complainant that it was, or might have been, KH who had offended against him.
In re-examination, the complainant was asked whether he recognised the voice of the person who said, ‘I love you’. He said that he recognised it as the applicant’s voice. He also said that when the light was turned on, he could see Isa and KH lying on the floor or lying on something in the room near the front door, and that only he and the applicant were in the loungeroom.

Stay application hearing (March 2023)

At the hearing of the stay application, evidence was given by the informant and the applicant. In her reasons for refusing the stay application, the judge referred to the evidence given by the applicant on the application. Accordingly, it is necessary to summarise some of this evidence.
The applicant gave evidence of the conversation referred to in ZA’s statement. He said the conversation occurred in Dandenong, after he had been to court in Bendigo earlier in the day. His evidence was that while he was sitting with ZA and KH, KH stopped him and told him:

Oh yes, I remember that night when you were asleep, I put my finger into [the complainant’s] anus.

The applicant’s evidence was that he was shocked by what KH had told him. He responded, ‘What have you done?’. The applicant’s evidence went on:
He just told me three or four times that he put his finger into [the complainant’s] anus and then I just told [ZA], ‘Ah, have you heard what he’s telling us’ and he told me yes, that he’s telling me that he has put his finger into [the complainant’s] anus.
In cross-examination, the applicant said that on the night in question he was sleeping on the floor of the loungeroom, about two metres away from the complainant. He said that the reason he slept there was because he was worried that the complainant was drunk and might fall from the couch ‘or he might need some water or something’. The applicant denied telling ZA that the reason he slept near the complainant was because he knew KH’s habits. He also denied saying to KH, ‘How do you do that when I sleep next to him?’. The applicant’s evidence was the part of ZA’s statement which made that assertion was false, and that he never would have said to KH that he (the applicant) was sleeping next to the complainant.
Later in cross-examination, the applicant said that he had a clear memory that the words used by KH, three or four times in the conversation, were ‘I put my finger into [the complainant’s] anus’.

Applicant’s submissions to the primary judge

As we have already noted, KH (the alleged confessor) is dead. The applicant’s submissions to the primary judge were premised on an assertion that ZA has left Australia and cannot be found. KH and ZA are thus taken to be not available to give evidence about an asserted fact within the meaning of s 65 of the Evidence Act 2008.[6]
[6]See clause 4 of the Dictionary.
The applicant observed that if ZA were available to give evidence, he could give evidence of KH’s hearsay confession pursuant to the exception to the hearsay rule contained in s 65 of the Evidence Act. That exception does not apply, however, in respect of ZA’s statement, because the exception in s 65 is limited to ‘first-hand’ hearsay.[7] ZA’s statement is second-hand hearsay – being an out of court statement made by one person (ZA), which contains an out of court statement made by another person (KH).
[7]See s 62 of the Evidence Act.

Before the judge, the applicant accepted that a court should only grant a permanent stay in rare or exceptional circumstances; and that what had to be shown was that the continuation of the criminal proceeding would involve unacceptable injustice or unfairness. He submitted that a permanent stay was justified in the present case because of the ‘irreparable prejudice to his defence’ caused by the fact that there is no basis upon which ZA’s statement (despite its relevance) can be admitted.
In summary, the applicant submitted to the primary judge that the ‘unique’ circumstances of this case, which prevent the applicant from running an effective and reasonable defence, required the proceeding to be permanently stayed. The applicant identified those circumstances as including:
•the nature of his defence, being that ‘if it was not [him] then it was either ZA[8] or KH’;
•the complainant’s ‘relatively poor identification of, and assumption that’, the applicant was the person who assaulted him;
•the possibility that KH lied to police about not knowing the complainant;
•the confession by KH to ZA and the applicant that KH was responsible and left the loungeroom while it was still dark — explaining how the complainant mistakenly blamed the applicant;
•the subsequent death of KH;
•the subsequent unavailability of ZA; and
•the operation of the hearsay provisions of the Evidence Act on the facts of this case.
[8]The submission to the primary judge that ZA may have been the perpetrator was based on the applicant’s then contention that Isa was most likely ZA. As we have already observed, that suggestion was withdrawn by the applicant in this Court.
The applicant concluded his submissions before the primary judge by noting that, to justify a permanent stay, 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 applicant then submitted that ‘there is no way that this could be cured given the crucial nature of ZA’s evidence to [the applicant’s] defence in the unique circumstances of this case’.
Primary judge’s reasons
The primary judge commenced her reasons by saying that a permanent stay ‘is clearly an extreme remedy’. Her Honour then turned to the test to be applied, saying:
The test is expressed in different ways but essentially, the accused must show that his trial will necessarily be unfair. That is, that there is nothing that the judge can do which will alleviate that unfairness.
The judge said that she was not satisfied that the trial would necessarily be unfair to the applicant without ZA’s statement being admitted. Her Honour said that ZA’s statement had ‘the potential to reflect unfavourably upon him’. Her Honour then said:
This case can be contrasted with those in which missing witnesses would clearly have been able to give relevant evidence about the circumstances of an alleged crime. A statement was taken from [KH] after the accused nominated him in his record of interview as being a person present on the night. [KH] denied knowing anything about the events of that night or even knowing the complainant by name. His account accords with the complainant’s account of the night and also the accused’s account in his record of interview, insofar as he said in his statement that the sleeping arrangements were that he would sleep in the bedroom on the floor of the accused’s flat. This is what the complainant said in his evidence by way of VARE and special hearing. That is, that the other two people who were in the flat that night had nothing to do with what occurred between him and the accused, who were in the lounge room, and the other two people were in the bedroom on the floor.
The accused in his record of interview only had one other person present on the night in his flat, who was [KH], and he also said that [KH] was sleeping on the floor in his bedroom.
In my view, neither the circumstances in which [ZA] made his statement nor its contents inspire any confidence as to its veracity or reliability. To the contrary.
After referring to ZA’s attendance at the applicant’s committal, and ZA’s provision of a ‘false address … and possibly also a wrong or outdated telephone number’, her Honour turned to the contents of ZA’s statement and said:
In terms of the contents of the statement of [ZA], it simply does not have the ring of truth to it. In fact, [ZA’s] account of what the deceased [KH] said is quite odd and implausible.
For example, ZA says that the accused said to [KH], ‘How do you do that, when I sleep next to him?’ And [KH] responded, ‘On that time you were sleeping, he was also sleeping, the boy. Boy is on the couch and [the applicant] is on the floor. I gave the finger and I moved from there. [The applicant] woke up and the boy woke up and he looked to see [the applicant]. He did not see me, he just see [the applicant].’
Further, [ZA’s] statement is inconsistent with the accused’s record of interview, in which the accused has himself sleeping in the bedroom, not in the lounge room.
And it is also inconsistent with the accused’s evidence on the voir dire in significant respects. I do not regard the fact that [ZA] says the accused said he came from Swan Hill court as opposed to Bendigo court to be terribly significant, considering the accused and probably [ZA’s] language difficulties and perhaps limited understanding. But nevertheless, it is a difference. More significant is that – in fact, very significant – is that [ZA] said that [KH] started laughing and said, ‘You remember that night, I give a finger to that boy on that night.’
And he repeated [KH] as saying that, ‘I give him finger on that night,’ — later in his statement — and said that [KH] said that two or three times. [ZA] then went on to say, ‘When he said that he gave him the finger, I knew that meant he put his finger inside his arse. I didn’t ask any more explanation, but I knew his meaning.’ This can be contrasted with the evidence of the accused that the confession by [KH] was to inserting his finger into the anus of the complainant.
To quote, the accused gave evidence that he said, ‘I put my finger into [the complainant’s] anus,’ which is quite an explicit admission. Further, [ZA] said that the accused said to [KH] after he confessed, ‘How do you do that when I sleep next to him?’ Now, that is something that the accused denied saying in the voir dire and also denied doing in the voir dire. In the voir dire, as opposed to the record of interview, he had himself sleeping in the lounge room, albeit two metres or so from the complainant.
Another significant inconsistency is that [ZA] says, ‘[The applicant] told me the reason he slept near [the complainant] is because he knows [KH’s] habits. He wanted to look after him. He put him on the couch and sleep next to him.’ Now, this is to be contrasted with what the accused said in the voir dire. He denied that he told [ZA] that that was the reason that he slept next to, or rather near, [the complainant]. Instead, he gave as the reason that he slept near [the complainant] to protect him if he fell off the couch because he was drunk or to assist him if he needed water.
The accused also said in evidence in the voir dire that he did not have any concerns about [KH] doing anything — presumably in a sexual sense — to the complainant. He wasn’t worried about that at all. So, there are significant differences between the evidence given by the accused on the voir dire and the statement of [ZA].
The judge then observed that the applicant’s legal representatives were aware of the precise terms of ZA’s statement prior to the special hearing conducted in July 2022, and that they had the opportunity to cross-examine the complainant on anything contained in it if they wished to do so. Her Honour observed that the complainant’s evidence at the special hearing was ‘clear that it was the accused who did the act he complained of and the other two males were on the floor in the bedroom’.

Applicant’s submissions

In contending that it was not reasonably open to the primary judge to refuse his application for a permanent stay, the applicant advanced the following written contentions in this Court:
(1)The primary judge erred in giving no weight to the overall unfairness that would arise in the applicant being forced to undergo a trial in which he could not put his best, and perhaps only real, defence — namely, that another person present in the unit at the time of the alleged offending had admitted to committing the offence.
(2)The primary judge erred in giving no weight to the fact that, in the absence of ZA’s statement, the applicant would be compelled to give evidence in order to advance the defence that KH committed the offence — thereby exposing the applicant himself to an attack that he has invented this defence.
(3)The judge erred in considering the reliability of ZA’s statement. That was a matter for the jury. The correct approach required the judge to consider the significance of the evidence which could not be called from the perspective of the applicant. In impermissibly focusing on credibility issues relating to the applicant and ZA, the judge took into account irrelevant matters (including the matters she identified as inconsistencies) and failed to take into account relevant considerations. Specifically, the applicant complained about the judge:
•taking into account an irrelevant consideration relating to the provision by ZA to the informant of incorrect information about his address and telephone number;
•considering and/or giving too much weight to the various statements made or alleged to have been made by the applicant about where he slept on the night in question;
•considering the different versions of KH’s confession given by the applicant and ZA as a material inconsistency;
•considering the difference between the applicant’s evidence and ZA’s statement about the applicant being aware of KH’s habits as a material inconsistency;
•considering or giving weight to the fact that the complainant was not cross-examined at the special hearing about whether it was KH who had offended against him; and
•declaring her preference for the evidence of the complainant over the evidence of the applicant and ZA’s statement.
In oral argument in this Court, the applicant contended that the judge’s discretion miscarried on three bases:
(1)First, the judge’s discretion miscarried when she identified the inadmissibility of ZA’s statement as the source of irredeemable prejudice. The applicant submitted that the source of the irredeemable prejudice was the unavailability of KH (the alleged confessor) as well as the unavailability of ZA (a person independent of the accused who could give evidence of KH’s confession). The misidentification of the source of the prejudice meant that the judge was unable to properly identify the nature of the prejudice.
(2)Secondly, the discretion miscarried when her Honour made a ‘mixed error of principle and fact’ when she concluded that KH’s statement to police was to be preferred over and above the contents of his alleged confession. The applicant submitted that the judge’s conclusion read too much into KH’s statement to police; and that, in any event, it was an error in principle for her Honour to express any preference one way or the other.
(3)Thirdly, the judge’s discretion miscarried when she had regard to her own view of the veracity of ZA in determining whether his unavailability had created any prejudice to the applicant’s defence. Her Honour did not evaluate the lost opportunity from the perspective of the defence, as she was required to do. Furthermore, because the question was whether ZA’s evidence of the confession would have been admissible had he been available to give evidence, the judge’s examination of ZA’s evidence had to be directed to the statutory question in s 65(2)(d) of the Evidence Act, specifically, whether KH made the representation in circumstances that made it likely that the representation was reliable.
In oral submissions, the applicant contended that, in any event, it was not open to the primary judge to refuse his application for a permanent stay. Those submissions were premised on the prejudice said to flow from the unavailability of both KH and ZA — KH being described by the applicant as a ‘critical witness’. It was submitted that it did not matter what evidence KH, in particular, would have given. His absence meant that the applicant was deprived of the opportunity of putting to him, in front of the jury, the contents of ZA’s statement and the allegation that he was the perpetrator of the offence. Irrespective of his answers, it was said that the jury could thereby have formed their own view of his credibility. As matters stood, the applicant was instead placed in the invidious position of choosing whether to expose himself to cross-examination by giving evidence himself of the alleged confession in his presence. It was submitted that this made a trial unavoidably unfair, and in particular that the position could not be ameliorated by a forensic disadvantage direction.

Respondent’s submissions

The respondent submitted that the primary judge had proper regard to the circumstances in which the prior representations of both KH and ZA were asserted to have been made, and the inconsistencies between ZA’s statement and the accounts given by the applicant (both in the record of interview and in his evidence before the judge). The respondent submitted that a proper consideration of the likely probative value of the unavailable evidence was necessary in order to assess the possible prejudice or unfairness that may result from its unavailability. Consideration of the likely probative value of the unavailable evidence was necessary in order that the Court could consider the probability, not merely the possibility, that the refusal to grant a stay would result in an unfair trial.
The respondent also submitted that the public interest in continuing the prosecution is strong, and that the order refusing the application for a permanent stay was correctly made. To the extent that there was a forensic choice facing the applicant as to whether to give evidence of the alleged confession himself, it was submitted that this was not an unusual position for the defence to be in, and the applicant would have the advantage of a forensic disadvantage direction.

Relevant principles

A permanent stay of a proceeding may be ordered to prevent an abuse of process. The central question is whether there is a fundamental defect of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences.[9] The expression ‘abuse of process’ encompasses not only circumstances within the narrow conception of that term — such as bringing a proceeding for an improper purpose, or pursuing a proceeding which is foredoomed to fail — but also the prosecution of a criminal proceeding in such a way as to make it unfair and/or an instrument of oppression. It is well-established that the circumstances in which proceedings may be found to be an abuse of process are not susceptible of exhaustive definition.[10]
[9]R v Glennon (1992) 173 CLR 592, 605–6 (Mason CJ and Toohey J) (‘Glennon’).
[10]R v Edwards (2009) 83 ALJR 717, 723 [33] (Hayne, Heydon, Crennan, Kiefel and Bell JJ) (‘Edwards’).
A heavy onus lies on an applicant for a permanent stay to persuade a court to make the order sought. A permanent stay is a remedy which will only be granted in a rare case.[11] That said, the question to be asked in any given case is not so much whether the case can be characterised as rare, but rather, whether an apprehended defect in the trial is ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’.[12]
[11]Glennon (1992) 173 CLR 592, 605–6; Walton v Gardiner (1993) 177 CLR 378, 392–3 (Mason CJ, Deane and Dawson JJ) (‘Walton’); Edwards (2009) 83 ALJR 717, 723 [34].
[12]Dupas v The Queen (2010) 241 CLR 237, 250 [35] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) (‘Dupas’).
An applicant for a stay must establish that the continuation of the prosecution would — not could — involve unacceptable injustice or unfairness and be so unfairly and unjustifiably oppressive as to constitute an abuse of process.[13]
[13]Walton (1993) 177 CLR 378, 392; Edwards (2009) 83 ALJR 717, 720–1 [23].
In considering the effect of missing evidence on the fairness of the trial, and whether it can be said that the unavailability of such evidence would, as a matter of probability, result in an unacceptably unfair trial, the effect of the missing evidence is not to be assessed in a vacuum or in isolation. Rather, it must be viewed in the context of all of the evidence likely to be adduced at trial.[14] In an application for a permanent stay, the focus of attention in relation to unavailable evidence is on the value of the lost opportunity to call that evidence — assessed from the perspective of the defence.[15]
[14]See R v FJL (2014) 41 VR 572, 576–7 [24] (Osborn JA, with whom Redlich JA and Sifris AJA agreed), citing Kaye JA (with whom Neave JA and Lasry AJA agreed) in Audsley v The Queen (2013) 228 A Crim R 98, 110 [55].
[15]McGee (a pseudonym) v The Queen [2020] VSCA 146, [132] (Maxwell P, T Forrest and Weinberg JJA) (‘McGee’). See further Lucciano v The Queen (2021) 287 A Crim R 529, 539–540 [43]–[44] (McLeish, Niall and T Forrest JJA); [2021] VSCA 12 (‘Lucciano’).
The determination of a permanent stay application involves a subjective balancing of various considerations. The Court must have regard to the substantial public interest in having those charged with serious criminal offences brought to trial as well as the fundamental right of an accused to a fair trial and the need to maintain public confidence in the administration of justice.[16]
[16]Walton (1993) 177 CLR 378, 395–6.

Consideration

Contrary to the applicant’s submissions, the judge’s discretion did not miscarry when she identified the admissibility of ZA’s statement as the source of the alleged irredeemable prejudice. In this Court, the applicant accepted that the basis upon which his stay application was made to the primary judge was set out in his written submissions to her Honour. The concluding sentence of the first paragraph of the applicant’s written submissions to the primary judge asserted that it was the lack of any basis upon which ZA’s statement could be admitted which had caused the applicant incurable and unfair prejudice in his defence. The applicant’s written submission to the primary judge then concluded with the assertion that a trial judge could not ameliorate the unfairness of any trial ‘given the crucial nature of ZA’s evidence to [the applicant’s] defence’. While there were references to KH’s unavailability (caused by his death) in the applicant’s submissions to the judge, these were contextual and/or made for the purpose of showing how KH’s alleged confession could be admitted under s 65 of the Evidence Act. At no stage was it submitted to the judge that the unavailability of KH was a ground for permanently staying the applicant’s trial.
Far from her Honour’s discretion miscarrying because of some failure to identify the prejudice contended for by the applicant, and contrary to the applicant’s submissions in this Court, an analysis of the ruling shows that her Honour engaged in detail with the matters which were actually advanced by the applicant as constituting the basis for permanently staying his trial.
The appeal to this Court (if leave is granted) is an appeal in the strict sense. It is not a rehearing at which the applicant is at liberty to advance a different case or to advance a different basis upon which the order sought below might now be made. The unfairness to a respondent, and the detrimental effects on the administration of the criminal justice system, if an applicant were to be permitted to advance a different application for the first time in this Court, are obvious. Accordingly, we will consider the correctness of the judge’s order in light of the way in which the matter was argued before her Honour.[17]
[17]We say nothing about the possibility of a permanent stay now being sought in the County Court on a different basis from that in the present application.

The applicant’s proposed ground of appeal is that it was not reasonably open to the primary judge to refuse his application for a permanent stay. Notwithstanding the terms of this proposed ground, in his written submissions in this Court, the applicant made complaint about the judge taking into account irrelevant matters, failing to give any weight to relevant matters, and giving too much weight to other matters; and in his oral submissions, he identified the three specific ways, to which we have already referred, in which he contended that the judge’s discretion miscarried.
In these contexts, the applicant made specific complaint about the judge having undertaken any analysis of the kind performed by her Honour, as well as cavilling with the various conclusions that she made arising from the differences she identified between some of the contents of ZA’s statement, some of the applicant’s answers in his record of interview and some of the evidence the applicant gave on the stay application.
To the extent that the applicant submitted that her Honour should not have undertaken any analysis of the credibility or reliability of ZA’s statement as they were ‘matters of weight and submission for the jury’, that submission must be rejected.
First, it is only by undertaking an analysis of the kind performed by the primary judge that one can determine the extent of any prejudice to the applicant’s defence caused by the inability to call at trial the evidence which is now unavailable. If, on proper analysis, evidence which is now unavailable could not be said to be credible or reliable, it is difficult to see how it could be said that the absence of that evidence would — as a matter of probability, not possibility — result in an unacceptably unfair trial. As we have already said, the effect of missing evidence is not to be assessed in a vacuum or in isolation. Rather, it must be viewed in the context of all of the evidence likely to be adduced at trial.[18] That will inevitably involve the judge making some assessment of the reliability of an absent witness, albeit from the perspective of the defence, and therefore considering whether the evidence would have been capable of supporting the accused.[19]
[18]See R v FJL (2014) 41 VR 572, 576–7 [24] (Osborn JA, with whom Redlich JA and Sifris AJA agreed), citing Kaye JA (with whom Neave JA and Lasry AJA agreed) in Audsley v The Queen (2013) 228 A Crim R 98, 110 [55].
[19]Morton (a pseudonym) v The Queen [2020] VSCA 49, [154] (Beach and Kyrou JJA); McGee [2020] VSCA 146, [144]–[145] (Maxwell P, T Forrest and Weinberg JJA); Lucciano (2021) 287 A Crim R 529, 539–540 [43] (McLeish, Niall and T Forrest JJA); [2021] VSCA 12.
Secondly, cases such as Sio v The Queen,[20] to which the applicant referred in oral argument, are of no assistance to the applicant in the present case. Sio was a case concerning the admissibility of a hearsay statement pursuant to the exception in the equivalent of s 65(2)(d) of the Evidence Act.[21] Section 65(2)(d) provided that the hearsay rule did not apply if, amongst other things, the relevant representation was ‘made in circumstances that make it likely that the representation is reliable’. The High Court held that the focus of attention in determining whether s 65(2)(d)(ii) was engaged was ‘not the apparent truthfulness of the person making [the representation], but to the objective circumstances in which [the representation] was made’.[22] In so concluding, the High Court was engaged in the exercise of construing the statutory provision which provided the relevant exception to the hearsay rule under consideration in that case. The present case does not involve any such exercise because, in evaluating what the applicant had lost, the judge proceeded on the basis that ZA’s evidence was admissible. She considered the forensic value of ZA’s evidence to the applicant on the basis that the requirements of s 65(2)(d) were met.
[20](2016) 259 CLR 47 (‘Sio’).
[21]The section under consideration was s 65(2)(d) of the Evidence Act 1995 (NSW).
[22]Sio (2016) 259 CLR 47, 68 [70] (French CJ, Bell, Gageler, Keane and Gordon JJ).
Similarly, IMM v The Queen[23] is of no assistance to the applicant. In IMM, the High Court held that in assessing whether tendency evidence has significant probative value for the purposes of s 97 of the Evidence (National Uniform Legislation) Act (NT),[24] or in assessing the probative value of evidence for the purposes of s 137 of that Act, a trial judge is required to take the evidence at its highest. The conclusion in that case turned on the definition of ‘probative value’ — Part 1 of the Dictionary providing:
Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue … ;
[23](2016) 257 CLR 300 (‘IMM’).
[24]An Act which is in substantially the same terms as legislation adopted by the Commonwealth and by other States and Territories: IMM (2016) 257 CLR 300, 305 [9] (French CJ, Kiefel, Bell and Keane JJ).
The plurality[25] in IMM held that:
The assessment of ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’ requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest.[26]
No such issue or question of statutory construction arises in the present case, where her Honour was required to consider the effect of the evidence which had become unavailable — not the effect such evidence might have had if taken at its highest.
[25]French CJ, Kiefel, Bell and Keane JJ.
[26]IMM (2016) 257 CLR 300, 313 [44].
The judge analysed in some detail the differences between the contents of ZA’s statement, what the applicant said in his record of interview and what he said in evidence. The judge correctly identified the various differences. We are not persuaded that there was any error in her Honour’s analysis of the differences to which she referred. We accept, as the applicant submitted in oral argument, that the discrepancy between the words of confession described in ZA’s statement and the applicant’s own account might have less significance than the judge was disposed to think. It is unknown in what language the alleged confession was spoken, and it is possible that both language and cultural differences might account for the apparent discrepancy. But this issue is not critical to the judge’s ruling, and the applicant did not advance any ground raising specific error.
In assessing, from the defence perspective, whether the unavailability of ZA’s evidence would, as a matter of probability, result in an unacceptably unfair trial, the judge was entitled, if not bound, to conduct an analysis of the kind set out in the ruling. It was necessary to conduct this analysis in order to determine the actual effect of the unavailability of ZA’s evidence on the applicant’s defence. We do not accept the applicant’s submission that the primary judge determined the stay application based upon the acceptance of a part or parts of the prosecution case. While, as with most ex tempore rulings, there is a certain looseness of language not usually found in reserved decisions, a fair reading of the ruling does not disclose that her Honour determined the stay application after resolving factual issues in contest between the parties. Rather, the ruling discloses that her Honour gave detailed consideration to relevant parts of the evidence for the purpose of determining the significance to the defence of the unavailability of ZA’s evidence. This was part of the task of considering the relevant evidence in the context of the other evidence at trial, and from the perspective of the defence, which the judge was required to undertake.
Similarly, we do not accept that the judge ‘declar[ed] her preference for the evidence of the complainant to the applicant and ZA, when what KH confessed to in the ZA statement was consistent with KH stating to ZA that he left the room before the complainant saw him’. The judge expressed no such preference. Her Honour merely observed that, ‘The complainant’s evidence was clear that it was the accused who did the act he complained of and the other two males were on the floor in the bedroom’. There can be no criticism of the judge for making this observation as part of her examination of the evidence — she having seen and heard the complainant being cross-examined during the course of the special hearing. Rather than preferring the evidence of the complainant, the judge properly took account of the fact that, if the statement of ZA were in evidence, it would be contradicted in material respects by the complainant. Similarly, the applicant’s conduct of the trial would need to take account of inconsistencies between the statement and his own evidence and record of interview.
Next, the applicant’s complaint about the judge observing that the complainant was not cross-examined at the special hearing about whether it was possible that KH was the person who offended against him is without substance. Notwithstanding the complainant’s evidence about waking up and seeing the applicant, and only talking to him when the light was turned on, it is at least surprising that there was no cross-examination of the complainant about what the applicant now contends is his ‘best and perhaps only real defence’. It will be recalled that the applicant’s legal representatives were aware of the contents of ZA’s statement before the special hearing.
For the reasons given above, we are not persuaded that there was any error made by the primary judge in refusing the application for a permanent stay. It was clearly open to her Honour to refuse the stay application. Indeed, having regard to the way in which the stay application was argued by the applicant before her Honour (with the irredeemable prejudice alleged by the applicant to be the inadmissibility of ZA’s statement), her Honour’s order was plainly correct.

Conclusion

The applicant’s application for leave to appeal must be refused.
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[2023] VSCA 205

4 September 2023