Haris (a pseudonym) v The King (No 2)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0190

ADAM HARIS (A PSEUDONYM)[1]	Applicant
v
THE KING [NO 2]	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 and BOYCE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 January 2024
DATE OF JUDGMENT:	20 February 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 9
JUDGMENT APPEALED FROM:	DPP v [Haris] (County Court of Victoria, Judge Chettle, 23 October 2023)

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CRIMINAL LAW – Interlocutory appeal – Application for a permanent stay on basis of unavailable witnesses and questioning of the applicant on a voir dire – Applicable standard of appellate review the ‘correctness standard’ – GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 97 ALJR 857 applied, Haris (a pseudonym) v The King [2023] VSCA 205 considered – Primary judge’s decision correct – Application for leave to appeal granted but the interlocutory decision affirmed.

CRIMINAL LAW – Interlocutory appeal – Whether cross-examination of applicant about events on the night of the alleged offending permissible – R v Hammond [1941] 3 All ER 318, Burns v The Queen (1975) 132 CLR 258, Wong Kam-Ming v The Queen [1980] AC 247, Macpherson v The Queen (1981) 147 CLR 512, R v Hein (2013) 117 SASR 444 considered.

Criminal Procedure Act 2009, ss 295, 296, 300, 370; Evidence Act 2008 ss 38, 65, 90, 135, 136, 137.

GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 97 ALJR 857, Haris (a pseudonym) v The King [2023] VSCA 205, R v Hammond [1941] 3 All ER 318, Burns v The Queen (1975) 132 CLR 258, Wong Kam-Ming v The Queen [1980] AC 247, Macpherson v The Queen (1981) 147 CLR 512, R v Hein (2013) 117 SASR 444.

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Counsel
Applicant:		Ms GF Connelly
Respondent:		Ms S Thomas
Solicitors
Applicant:	Angus Cameron Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
BOYCE JA:

Introduction

An indictment filed in the County Court charges the applicant with one count of rape contrary to s 38(1) of the Crimes Act 1958.[2] Before the commencement of his trial, the applicant applied for a permanent stay. The primary judge, Judge Chettle, refused the application. He also refused to certify his decision to refuse the application under s 295(3)(b) of the Criminal Procedure Act 2009 (‘CPA’). The applicant now seeks:
(a)leave to appeal the judge’s decision to refuse the application pursuant to s 295(2) of the CPA; and
(b)review of the judge’s refusal to certify pursuant to s 296(1) of the CPA.
[2]As amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.
This is not the first time the applicant has sought a permanent stay. He previously applied for a permanent stay to a different judge, Judge Carlin. This application was made on the ground of ‘irreparable prejudice to his defence, based on a subsequently inadmissible out-of-court confession made by a non-party’. The confession was allegedly made by a person, KH, who is deceased. KH’s alleged confession is recorded in a statement made by another person, ZA, who is unable to be found. As summarised by the applicant in his application to Judge Carlin:
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.
Before ruling on that application, Judge Carlin held a voir dire during which evidence was called, including evidence from the applicant. Judge Carlin ultimately refused the application. The applicant applied to this Court for leave to appeal Judge Carlin’s decision. This Court refused leave to appeal in Haris (a pseudonym) v The King.[3] Nevertheless, in refusing leave this Court observed that the decision to refuse leave said ‘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’.[4]
[3][2023] VSCA 205 (‘Haris’).
[4]Ibid [56] (Emerton P, Beach and McLeish JJA).
As noted above, the applicant subsequently made a second application for a permanent stay before Judge Chettle. The basis of this application was that the ‘unavailability of both ZA and KH represents an unfairness to the accused man which goes to the root of the trial and which cannot be remedied via means of judicial direction’. It was also submitted to Judge Chettle, in writing, that in respect of the voir dire that had taken place before Judge Carlin:
the accused was cross-examined extensively by the prosecutor about the central allegations in the trial. The prosecutor extracted an admission from the accused to having lied in his record of interview. The upshot is that the accused cannot advance a positive case consistent with the record of interview and cannot give evidence without his lies being exposed.
Judge Chettle refused this second application for a stay essentially on the basis that:
(a)it was not a new application, but ‘re-dressing up what the Court of Appeal [had] already determined’; and
(b)his Honour did ‘not believe there’s anything in the application’.
The applicant seeks leave to appeal from Judge Chettle’s decision on two proposed grounds:
1.That it was not reasonably open to the learned trial Judge to refuse the application for a permanent stay of the trial.
2.The learned trial Judge erred in concluding that the question of whether a permanent stay should be granted on the basis of the unavailability of KH and ZA had already been determined in Haris v DPP [2023] VSCA 205.
For reasons that will become evident later in this judgment, the applicant was granted leave, without objection, to amend Ground 1 to read ‘That the learned trial judge was wrong to refuse the application for a permanent stay’.
For the reasons that follow, we would affirm the decision of Judge Chettle to refuse the application to grant a permanent stay.

Background

Much of the background to this proceeding appears in this Court’s reasons in Haris for refusing the applicant’s first stay application. For brevity, we set out only the most salient aspects below.

Summary of prosecution case, the complainant’s Video and Recording of Evidence (‘VARE’) and the applicant’s record of interview

The prosecution case is that, on the evening of 19 October 2016, the complainant met up with the applicant near an RSL club. The applicant was accompanied by others including KH. The complainant and the applicant knew each other, having first met some four or five months earlier. The complainant had not previously met KH. The complainant has a mild intellectual disability.
During the course of the evening, the group went down to a river where 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. There was a bathroom and a kitchen.
In his VARE, the complainant said that, when he woke, he was lying on a 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[5] and Keefer.[6]
…
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 …
[5]In the VARE transcript, ‘Isa’ was typed as ‘Izza’.
[6]Before Judge Carlin, and in the first appeal, the parties accepted that the reference to ‘Keefer’ was a reference to KH. While the applicant submitted to Judge Carlin that the reference to ‘Isa’ was most likely a reference to ZA, in the first appeal, 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 he was ‘panicking’ and ‘scared’ when he woke up. The applicant turned the light on. The complainant said that he wanted to go home but the applicant wanted him to stay. 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 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 VARE was conducted by police on 13 January 2017, after the complainant reported the matter to police on 1 December 2016.
On 22 August 2017, the applicant was arrested and interviewed. In his record of interview, the applicant denied all allegations made against him by the applicant. He 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.

KH’s statement to police

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 a person of [the complainant’s name] but that ‘maybe if I saw him I would know him’; and
•he had ‘no information about anything relating to [the applicant] and an incident at our home’.
KH’s statement did not bear a jurat indicating an interpreter was utilised in its making.

KH’s alleged confession and ZA’s police statement

The applicant alleges that in about June or July 2019, in a conversation on the street in Dandenong between the applicant, 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. This alleged conversation was recorded in a subsequent statement ZA made to police on 3 January 2020. 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. I 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

Pursuant to s 370 of the CPA, 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. The complainant was then cross-examined.
In cross-examination, the complainant said that he had not met KH before the night of the offending. He 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 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’. He also said that, after he woke up, the applicant ‘probably might have’ given him a shirt and some pants. The complainant said that when he woke he said that he wanted to go and ‘freaked out’. He said he ‘panicked’. The complainant said that the applicant wanted him to stay. The applicant was positioned ‘at the front of his doorway, blocking me off, not letting me out’.
The complainant disagreed when it was put to him that the applicant denied the offending. 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.

First stay application

Evidence on the voir dire

At the hearing of the first stay application before Judge Carlin, both the informant and applicant gave evidence on a voir dire.
The informant gave evidence concerning the chronology of the investigation. He said that while the complainant’s VARE was conducted on 13 January 2017, the applicant was not arrested and interviewed until 20 August 2017. This delay was caused by the applicant having gone overseas and subsequent difficulty finding the applicant. The statement from KH was taken on 27 October 2017. The informant had ‘a lot’ of trouble locating KH. He said that KH died on 23 June 2019. The committal hearing was held on 9 October 2019. The informant said that at the committal hearing he was approached by the applicant’s counsel who advised him of a possible witness, ZA. This was the first that the informant knew about ZA. ZA told the informant about an earlier conversation between the applicant, ZA and KH. The informant indicated that he would take a statement from ZA and asked for ZA’s contact details. ZA provided an address and phone number. The informant had some difficulty locating ZA. ZA was not at the address provided (in fact ZA had never lived at that address, according to the informant); nor was ZA contactable on the phone number that had been provided.
The informant went to the address nominated by ZA some six weeks after the committal. The informant contacted the applicant to see if ZA could be located but the applicant was unable to assist. The informant was ultimately able to speak to ZA, via the applicant’s assistance. A statement was taken from ZA on 3 January 2020. The informant made attempts to locate ZA to serve a subpoena on him. The informant was then advised that ZA had left Australia on 19 April 2022. The informant said that if ZA was to return to Australia, the informant would be notified by Border Force.
When cross-examined, the informant said that none of the applicant, KH or ZA had ‘what you might call settled accommodation’; in fact they were ‘homeless’. When the informant first encountered ZA he was speaking English although the informant did not recall how good his English was.
The applicant gave evidence on the voir dire that he saw KH ‘one or two days before he passed away’. The applicant gave evidence about the conversation referred to in ZA’s statement. He said the conversation occurred in Dandenong; this was after the applicant had been to court in Bendigo earlier in the day. The applicant said that while he was sitting with ZA and KH he asked KH whether he remembered someone [the complainant’s name]. KH then 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 continued:
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.
The applicant then said that he asked ZA ‘have you heard what [KH] told me?’. The applicant then got ZA to repeat what KH had said.
The applicant said that the ‘next day’ he contacted his lawyer about what KH had said. He said that he gave ZA his lawyer’s phone number so that ZA could contact the lawyer ‘and just tell the truth of exactly what you have heard’. He said that he remembered coming to court with ZA. He then went with ZA to see the ‘lady police officer’ who interviewed ZA.
Under cross-examination the prosecutor took the applicant to the night when the complainant stayed at the applicant’s apartment and asked the applicant ‘on that night where did you sleep in the flat?’. The applicant answered that he was sleeping on ‘the floor’ about two metres from the couch upon which the complainant was sleeping. The bedroom was a separate room and the applicant said that he was not sleeping in the bedroom. The applicant was then asked why he was not sleeping in the bedroom. He answered that he was worried that the complainant was drunk and might fall on the ground from the couch or that the complainant might need water or something. He was asked whether he slept where he did because of KH’s habits. The applicant denied this. The applicant denied that he had ever said to ZA that the reason he slept near the complainant was because he knew KH’s habits.

The applicant was then asked why he told the police that he was sleeping in his bed. The applicant said that he was quite scared when the police arrested him but that he was sure that he was not sleeping in the bedroom and that he was sleeping on the floor. The applicant denied that he put his finger in the complainant’s anus. The prosecutor then put to the applicant that he had told lies to the police about where he was sleeping. The applicant answered that he could not remember what he told the police but that he thought that he had told police that he had slept on the floor. The applicant was then taken to the statement in his record of interview that he had slept in the bedroom. It was put to the applicant that this wasn’t true. The applicant answered that he had slept on the floor.
The applicant was taken to the part of his record of interview where he had said that KH had slept on the floor in the bedroom. It was put that what he told police was not true. The applicant answered that he was ‘completely paranoid’ at the time because of the rape charges and that he could not remember what he had said in his record of interview. Again, the applicant denied putting his finger in the complainant’s anus. The applicant appeared to concede ‘well, maybe’ he had lied to the police, but when it was put that he had lied ‘deliberately’ the applicant said that he could not remember; he gave evidence that he might have said those things but that ‘I was not in my good status of mind at the time when I did the interview’. It was put that when he was interviewed by police on 22 August 2017 he could remember clearly the night about which he was being questioned. The applicant replied that he couldn’t remember but that all he was saying was that KH confessed and that he (the applicant) was sleeping on the floor and that he is innocent.
The prosecutor then put to the applicant that the reason why he lied was to distance himself from the complainant. The applicant disputed this and repeated that he was innocent. It was put that the applicant was attempting to distance himself from the complainant by saying that he was two metres from the complainant, to which the applicant replied ‘it could’ve been two metres, one metre, so I’m not sure’. It was put to the applicant that he was sleeping right next to the complainant, to which the applicant replied ‘can two people sleep on the couch?’. The applicant denied that he was sleeping right next to the complainant. The applicant then denied that he had ever said to KH ‘how you do that when I sleep next to him’. It was put that the applicant was sleeping very close to the complainant whether it was on the couch or on the floor. The applicant answered that his foot was towards the complainant but that he was not close to the complainant at all. Again the applicant denied that he had told KH that he was sleeping next to the complainant.
The prosecutor then turned to the occasion of KH’s alleged confession and to the timing of this event. It was put that the applicant had gone to court on 20 June 2019 and 22 July 2019 but that he had not taken ZA to court with him on those occasions. The applicant denied that he knew KH was going to die or that KH was sick. The applicant agreed that he had a meeting with his lawyer on 13 June 2019 and that that was only a week or 10 days before KH died. It was established that on that day he told his lawyer about KH’s confession. He thought that the lawyer had told him that ZA was going to be present in court. The applicant answered ‘maybe’ when it was put to him that he and ZA had decided that ZA should accompany him to court and that ZA’s attendance at court had nothing to do with the lawyers. Ultimately, the applicant said that he was not sure if it was him or the lawyer who had suggested that ZA come to court. When it was put to the applicant directly that it was his and ZA’s idea for ZA to come to court on the day of the committal on 9 October 2019 — and ‘nobody else’s’ — the applicant answered ‘Yeah, so, he was the witness’.
The applicant denied that he had told KH and ZA that he had come from court in Swan Hill. He said that he had been in court in Bendigo. The applicant confirmed that KH had said ‘three or four’ times that ‘he had put his finger into [the complainant’s] anus’. The applicant agreed that he had a ‘clear memory’ of KH using those words.
The applicant was then asked whether he had said to KH that he had slept next to the complainant. The applicant answered ‘no, no. Well I didn’t. I never slept next to him’. The applicant agreed with the proposition that he ‘never slept next to him’ and that he ‘never said that [he] slept next to him’. He agreed that he had never said to ZA that the reason he slept near the complainant was because he was worried about KH.
It was then put to the applicant that he and ZA had ‘made up this story about what [KH] [was] supposed to have confessed to’ in order for the applicant to get out of his predicament. The applicant denied this. It was put that the reason he and ZA had ‘cooked up’ the story of KH’s confession was because the applicant knew that KH was ‘very ill and about to die’. The applicant denied this. It was put that it was ‘very convenient that the person you say made a confession is now dead’. The applicant, as part of a long answer to this question, said that he considered himself ‘quite lucky’ that the confession was made because otherwise he would have thought that the complainant was ‘playing a game with me’.
In re-examination the applicant said that he had travelled to the committal with ZA. He said that when he spoke to the police in his record of interview he was in a state of shock. He denied that he had told KH anything about where he was sleeping.

Submissions and ruling

Before Judge Carlin the applicant submitted that a permanent stay was justified 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) could be admitted. ZA’s statement, it was submitted, 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). It therefore does not fall within the exception to the hearsay rule contained in s 65 of the Evidence Act 2008,[7] which is confined to first-hand hearsay. No submission was made raising any criticism of the police investigation.
[7](‘Evidence Act’).
The prosecutor submitted that there should be no stay. He indicated that the Crown would be making no suggestion of incriminating conduct in respect of ‘the evidence that has been led on the voir dire’. He submitted that the applicant had suffered no forensic disadvantage by virtue of the absence of ZA and the consequent inadmissibility of his statement ‘when the accused has given clear sworn evidence that contradicts the very statement that my learned friend wants to put before the jury.’ The prosecutor then went on to enumerate the various contradictory matters. The prosecutor submitted that, having regard to those inconsistencies:
How my learned friend could say that the defence are forensically disadvantaged when they want to rely on something that is quite against the tenor of their own client’s sworn evidence on the voir dire is beyond me.
As previously noted, Judge Carlin refused the applicant’s first application for a permanent stay.
Her Honour commenced her reasons by saying that a permanent stay ‘is clearly an extreme remedy’. She then turned to the test to be applied:
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 stated 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].
Judge Carlin 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’.
First application to this Court
The applicant applied for leave to appeal Judge Carlin’s refusal on the sole ground that ‘[i]t was not reasonably open to the learned trial judge to refuse the application for a permanent stay’. The applicant argued (among other things) that the judge’s discretion miscarried when she identified the inadmissibility of ZA’s statement as the source of irredeemable prejudice. He 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.
As previously noted, on 4 September 2023, this Court refused leave to appeal. In refusing leave, this Court said:
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.[8]
[8]Haris [2023] VSCA 205, [54]–[56] (Emerton P, Beach and McLeish JJA).
Towards the end of the preceding quoted text appeared the following footnote: ‘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.’[9]
[9]Ibid.

Second stay application

As previously noted, the applicant applied a second time for a permanent stay. This time, the basis of the application was essentially three-fold: it was to point to (a) the unavailability of KH, (b) the unavailability of ZA, and (c) allegedly wrongful cross-examination by the prosecutor of the applicant on the voir dire before Judge Carlin.
As previously noted, Judge Chettle refused the application. As is apparent, in support of the application for a stay counsel relied on matters that were held in abeyance in Haris, and more. Yet it is fair to say that his Honour considered himself essentially bound by Haris. His Honour did not deliver a formal, as in a separate, ruling. But the tenor of Judge Chettle’s reasons for refusing the stay application is evident from the parts of the transcript extracted below:
And anyway you dress up your recent submissions, it’s the same thing. It seems to me that every point you raised has been covered by this Court of Appeal decision.
…
It’s the same issue dressed up in a different way
…
It doesn’t [matter] which way I look at it, whether you call it the inadmissibility of the statement or the unavailability of two relevant witnesses, they both have the same effect. I think this issue has been canvassed up hill and down dale in the Court of Appeal.
…
I’m happy to rule on it but I won’t certify in this case.
…
The Court of Appeal said they’re not shutting the door on another application, but what it meant was a different application to the one that was run originally, and I think really what you’ve done is redirect the same argument.
…
So, look, the way this should happen formally … is that I’ve read your application for a permanent stay. The grounds are set out therein in Exhibit A, the submissions that you have made in that respect, and I’ll mark them as an exhibit. For the reasons that I’ve discussed with you in running, I don’t think that this is a new application, I think it’s a re-dressing up what the Court of Appeal have already determined, and I do not believe that there’s anything in the application and I will refuse the application for a permanent stay.

GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 97 ALJR 857 (‘GLJ’)

Between the applicant filing his application for leave to appeal against Judge Chettle’s ruling and the hearing of that application in this Court, the High Court handed down its decision in GLJ. GLJ is a civil case involving a claim for damages for personal injury caused by alleged sexual assaults on the plaintiff in 1968 by a priest attached to the defendant Diocese when the plaintiff was 14 years’ old. The defendant applied for a permanent stay of the proceeding as an abuse of process on the basis that the 55-year delay and the death of the priest meant that the proceeding would constitute an abuse of process. The primary judge dismissed the permanent stay application, but the Court of Appeal allowed an appeal and permanently stayed the proceeding. There was no limitation period applicable to the plaintiff’s cause of action.
Relevant to the present application the High Court unanimously held that the applicable standard of appellate review of an order permanently staying a proceeding is the ‘correctness standard’ described in Warren v Coombes;[10] and that it was not appropriate on appeal from such an order to review the decision below in accordance with House v The King[11] as if the original decision was discretionary in nature.[12] By majority,[13] the High Court determined that the Court of Appeal was wrong to order that the plaintiff’s action be permanently stayed.[14] It was the decision in GLJ which prompted the applicant’s amendment of Ground 1.

Second application to this Court

[10](1979) 142 CLR 531, 552.

[11](1936) 55 CLR 499, 504–5.

[12]GLJ (2023) 97 ALJR 857, 862 [1] (Kiefel CJ, Gageler and Jagot JJ), 881–2 [95]–[96] (Steward J), 892 [161] (Gleeson J).

[13]Ibid, Kiefel CJ, Gageler and Jagot JJ; Steward and Gleeson JJ contra.

[14]Ibid, 865 [15].

Ground 2

It will be recalled that Ground 2 is that Judge Chettle erred in concluding that the question whether a permanent stay should be granted on the basis of the unavailability of KH and ZA had already been determined by this Court in Haris.
The applicant submits that there was a material difference between the first and second stay applications. According to the applicant, the unavailability of witnesses is not the same thing as the inadmissibility of their previous representations. The former deprives the accused of the opportunity to have the witness give evidence in front of the jury. The latter deprives the accused of a partial amelioration of the forensic disadvantage occasioned by the first. It was submitted that Judge Chettle erred in refusing the stay application below because this Court in Haris had decided the case on the basis of the unavailability of witnesses.
The respondent submits that the issues raised in the second stay application have already been fully ventilated. There is no material difference between the two applications. KH made a statement that did not disclose any confession. The statement of ZA is inadmissible because ZA is unavailable. Any unfairness from the inadmissibility of the statement flows directly from the unavailability of ZA. Judge Carlin carefully considered the question of unfairness to the applicant. Her Honour’s ruling was ‘plainly correct’. A consideration of any unfairness to the applicant resulting from ZA’s unavailability would necessarily involve rehearsing the same arguments that were ventilated at the first stay application and in the Court of Appeal judgment in Haris.

Consideration

We would uphold Ground 2. It is clear that the judge considered that this Court’s decision in Haris had decided the issue that fell to be determined by him. But that was not so. Whatever might be said about possible disaggregation of ZA’s unavailability and the inadmissibility of his statement, this Court in Haris did not consider whether Judge Carlin’s decision was erroneous by reference to the unavailability of KH or, indeed, by reference to any submission that the prosecutor’s questioning of the applicant on the voir dire was wrongful.

Consequences of upholding Ground 2

The applicant submitted that if Ground 2 was upheld then this matter ought either be remitted to the trial court, or, in the alternative, be decided by this Court free of appellate constraint. In the latter case, this Court would decide for itself whether or not there should be a permanent stay.[15]
[15]Reliance was placed, in this regard, on the CPA, s 300(2)(b)(i).
This was so, it was submitted, because it was impossible for this Court to assess Judge Chettle’s decision to refuse a permanent stay by application of the ‘correctness’ standard as ‘there’s not really been a decision’:
All that happened was that there was a conclusion, and so there is in effect no primary evaluation of the merit of this application … about which [the Court] can assess the correctness.
The respondent did not accept that if Ground 2 was upheld it was impossible to assess Judge Chettle’s decision by application of the ‘correctness’ standard.
We do not consider that this Court is unable to assess the correctness of Judge Chettle’s decision to refuse the application for a permanent stay, even though his Honour declined to rule on the merits of the second stay application and dismissed it on the ground that this Court had already decided the issue in Haris. Unlike Judge Carlin, Judge Chettle did not hear, and it was not anticipated that his Honour would hear, evidence. The material upon which a permanent stay was sought before Judge Chettle is before this Court, including the detailed submissions of the parties on the consequences of the unavailability of KH and ZA. Whilst Judge Chettle may have been in error in concluding that this Court had already decided the issue and in declining to consider the merits of the stay application, we consider that we are in a position to assess the correctness of the refusal to grant a stay based on the merits of the application.[16]
[16]Warren v Coombes (1979) 142 CLR 531, 551 (Gibbs ACJ, Jacobs and Murphy JJ).
Before us, the applicant’s counsel stated that she was ‘in a position’, and wished, to put ‘full argument’ — that is, free of appellate constraint — before this Court concerning ‘why the stay should be granted’. Counsel acknowledged that the argument sought to be presented ‘may go beyond’ what had been put below. Nevertheless, counsel agreed that, in terms of what was sought to be put, whilst there may be a ‘technical difference’ between that argument and any argument that was confined by appellate constraint, there was — in the circumstances of this case — really no ‘practical difference’ between the two. And so the Court entertained argument on that basis. The respondent’s counsel did not object to the argument proceeding in this manner.

Ground 1 — submissions

The submissions made by the applicant largely built upon what had been submitted before Judge Chettle in that the emphasis was laid, in the main, upon (1) the absence or unavailability of KH, (2) the absence or unavailability of ZA and (3) the allegedly wrongful cross-examination of the applicant by the prosecutor on the voir dire before Judge Carlin.
As an overarching submission the applicant argued that ‘on the issue of identification of the offender the Crown is in a position to adduce inculpatory evidence because it has an available witness and it is not in a position to adduce exculpatory evidence because the witnesses that could be exculpatory aren’t available’.
As to the unavailability of KH, the applicant submitted that he had lost the opportunity to challenge KH in the witness box concerning the substance of his alleged confession, his denial in his statement of knowing the complainant, and his denial that there had been any incident at the applicant’s house, in circumstances where it was submitted that if what the complainant described was true, it would have been obvious to KH.
It was submitted that KH was named on the indictment and would have been called by the Crown had he not died. It followed that the Crown had not concluded that KH was not a witness of truth. It was submitted that what KH could say was clearly material. From the perspective of the applicant — that is, if ZA’s evidence of KH’s confession was true — KH could give exculpatory evidence either directly because of what he might admit before the jury, or indirectly because of what could at least be put to him in front of the jury. In a trial where the Crown seeks to add inculpatory evidence as to the identity of the offender, the absence of KH is a defect of such a nature that there would be nothing the trial judge could do to relieve its unfair consequences. The trial, in the absence of KH, would involve such unacceptable unfairness that its conduct would constitute an abuse of process.
As to the absence of ZA, the applicant submitted that the defence had lost the forensic opportunity of having the fact of the confession confirmed by a third party. Moreover, the defence would be deprived of the opportunity to explore, with the benefit of an interpreter, what ZA could say about what he had heard in Dandenong.
The applicant submitted that ZA was a material witness. The Crown had not said that ZA was not a witness of truth, and, unless the applicant gave evidence, without him there would be no evidence of the confession. If the applicant gave evidence of the confession, that evidence would not be corroborated. It was submitted that, as was the case for KH, the absence of ZA was a defect of such a nature that there was nothing the trial judge could do to relieve its unfair consequences. The trial, in the absence of ZA, would involve such unacceptable unfairness that its conduct would constitute an abuse of process.
As to unfairness arising out of the cross-examination of the applicant on the voir dire, the applicant submitted that it was wrongful for the prosecutor to have cross-examined the applicant about what had occurred at his apartment on the night of the offending. In particular, it was impermissible for the prosecutor to have asked the applicant where he had slept. Once it was established that the applicant had departed in evidence from the version given in his record of interview, it was impermissible to question the applicant about why he had lied. In submitting that any cross-examination of the applicant touching on ‘the ultimate truth of what transpired in that room’ was ‘impermissible’ the applicant relied on the dicta of the High Court in Burns v The Queen[17] and MacPherson v The Queen.[18]
[17](1975) 132 CLR 258, 263 (Barwick CJ, Gibbs and Mason JJ) (‘Burns’) where their Honours spoke of ‘strong reasons’ why a judge hearing a voir dire should exercise a discretion to prevent the accused from being cross-examined as to matters of guilt.
[18](1981) 147 CLR 512, 523–4 (Gibbs CJ and Wilson J) (‘MacPherson’).
The applicant noted that on the voir dire before Judge Carlin, the Crown had mounted a case of concoction as between the applicant and ZA. It was submitted that, as a matter of ‘fact and logic’, none of what the applicant had to say on the voir dire about ‘where he slept’ and ‘whether or why he lied in his record of interview’ was probative of an allegation of concoction with ZA. The applicant conceded that it was legitimate for the Crown to explore credit matters regarding the likelihood of KH’s confession having been made and ZA’s statement about KH having confessed being truthful. However, the applicant pointed out that ZA’s statement was ‘closely aligned’ with the Crown case insofar as ZA’s statement recorded the applicant saying that he had slept next to the complainant. The Crown case, after all, was that the applicant had slept in the lounge room near the complainant.
It was submitted, therefore, that in exploring the truthfulness of ZA’s statement, nothing about what the accused said in his record of interview or on the voir dire about where he actually slept, was probative of the truthfulness of ZA’s statement. Where what ZA had to say was so close to what the complainant said about the location of the applicant, the Crown was prevented from putting to the applicant on the voir dire that he was a liar. Nor could the prosecutor suggest that the applicant had concocted a version of events with ZA so as to come up with something that, on the Crown case, was accurate.
Although the applicant was not compelled to give evidence on the voir dire, nor had he been misled as to the prospect of a future criminal trial when he chose to enter the witness box on the voir dire, the applicant submitted that:
The questioning about the circumstances of the offence has the consequence that the applicant can no longer choose what course to adopt at trial based only on the strength of the prosecution case. He cannot now address the jury in accordance with his record of interview. If he gives evidence, he may be able to be cross-examined by reference to his evidence on the voir dire. The voir dire was not a compulsory examination but it had the same practical effect. The need for it was occasioned by the unavailability of exculpatory evidence in the context of a trial where inculpatory evidence is available and will be called by the Crown. The voir dire was the product of the unavailability of KH and ZA.[19]
[19]Reliance was placed on X7 v Australian Crime Commission (2013) 248 CLR 92, 127 [71] and 142 [124] (Hayne and Bell JJ) (‘X7’) and Lucciano v The Queen (2021) 287 A Crim R 529, 535 [26] (McLeish, Niall and T Forrest JJA) (‘Lucciano’).
It was submitted, moreover, that the applicant would not be able to rely on the version that he gave in his record of interview in any future trial because, in view of the version that he gave on the voir dire, his counsel — ethically — would be prevented from putting forward such a defence.
Reliance was placed on the fact that evidence given on the voir dire by the applicant was that the applicant had drawn the fact of KH’s confession to his lawyer’s attention soon after the conversation between KH, ZA and the applicant at Dandenong. This had occurred before KH had died. It was said that there was no evidence that the applicant knew that ZA would be unavailable or that KH was going to die.
Going beyond what had been put to Judge Chettle, in his Written Case under the heading ‘The state of the evidence’, the applicant listed certain steps that investigating police might have taken but didn’t. These related, largely, to processes of identification that were not undertaken. The complainant was not asked, for instance, to undertake an identification of the three people he said were in the apartment. No attempt, so it was submitted, was made to have KH identify the complainant.
It was submitted under this heading, again in writing, that the ‘applicant was not asked in his record of interview whether he was known by the name Ali’. It was submitted in writing, also, that:
No statement was taken from KH until more than a year after the alleged offence. The statement taken does not bear a jurat to indicate an interpreter was utilised in its making.
When we raised with counsel for the applicant that the matters that ‘at least hint at an inadequate police investigation’ were not agitated below and so could not be dealt with in this Court, counsel for the applicant submitted that those matters were ‘there by way of background’ and should not be treated as ‘matters directly giving rise to error’. It was submitted that they were ‘factual matters within which the prejudice to the accused falls to be assessed’. More particularly, it was submitted that:
There’s not a criticism of the police investigation as that in and of itself will give rise to error but when considering the prejudice occasioned by the absence of KH and ZA, one has to consider what is the state of the evidence otherwise available to be adduced.
Counsel for the applicant sought to raise as evidential background one last matter that had not been raised below. This was to call attention to the fact that the Crown Opening made no reference to other persons being present in the applicant’s apartment on the night of the offending. However, the Crown Opening did refer to the applicant having shared the apartment with a person called ‘Jafar Hussain’. It was submitted that the defence was left ‘unenlightened by the evidence as to who Jafar Hussain is’. Nevertheless, the existence of this person increased the possibility of mistaken identity by the complainant given the nature of the event that the complainant described.
The respondent submitted that there was no basis to order a permanent stay and that the continuation of the criminal process would not involve unacceptable injustice or unfairness or be so unfairly and unjustifiably oppressive as to constitute an abuse of process.
The respondent drew attention to the fact that a complaint to police was made in early 2017 but that the applicant was unable to be located for seven months. The applicant was interviewed in August 2017. This alerted police to the identity of KH and KH was located a few months later. ZA was brought to the attention of authorities at the time of the committal. ZA’s statement was then taken promptly once police had the appropriate details.
The respondent submitted that had ZA been available and called by the Crown, it was ‘highly likely’ that an application would have been made pursuant to s 38 of the Evidence Act to cross-examine ZA on the basis that ZA’s evidence was unfavourable. While ZA had not been conferenced by a prosecutor, it would have been ‘extraordinary in the context of this case for the prosecution to be putting him forward as a witness of truth’. Had ZA been called, he would not have been relied on by the prosecution. Indeed, it was possible that ZA might not have been called at all by the Crown. ZA would not have been a material witness given that he was not present at the applicant’s apartment on the night of the offence.
With respect to KH, the respondent submitted that while his name had been included on the indictment, the indictment was signed after he was known to be deceased and his name was marked with an asterisk accordingly. Accordingly, it was overstating the case to say that it was intended that KH be called — the prosecution was never able to call him and this was known by January 2020. KH’s statement, it was submitted, does not corroborate ZA’s evidence of the confession and is consistent with the complainant’s account. KH’s statement is capable of being adduced in evidence by the prosecution, or by cross examination in relation to the investigation, but what KH might have said in cross-examination was, it was submitted, ‘a matter of speculation’ — although it was likely that he would deny having confessed. If he did deny it, the jury would be bound by the answer to the question.
It was submitted that insofar as KH said that he did not know the complainant, there was no necessary inconsistency — the statement from KH was taken some 12 months after the event, it was broadly in line with what the complainant said, and it did not foreclose the possibility that he might concede that he had met the complainant. In other words, the tenor of KH’s statement concerning the complainant was such that there might be a ‘perfectly reasonable’ explanation for what was expressed in his statement. It was, again, entirely speculative as to whether cross-examination of KH would produce any inconsistency concerning this matter. It was submitted that the absence of a witness does not necessarily mean that a trial will be unfair.[20]
[20]The respondent’s counsel relied, at this point, on GLJ (2023) 97 ALJR 857, 874 [53] (Kiefel CJ, Gageler and Jagot JJ).
The respondent submitted that any unfairness could be met by the judge giving a forensic disadvantage direction, depending on how the trial was run. If the applicant did not give evidence and KH’s statement went to the jury (either as first-hand hearsay of an unavailable witness or if cross-examined into evidence by the applicant) there would be a forensic disadvantage direction given concerning the absence of KH. A forensic disadvantage direction could also attach to the inability to call the person ‘Isa’. If the applicant was to give evidence concerning the conversation at Dandenong, the applicant would likely get a forensic disadvantage direction with respect to ZA’s unavailability. In that scenario there could also be a forensic disadvantage direction concerning the absence of KH and ‘Isa’.
The respondent submitted that if the applicant does not give evidence at trial, the jury will be left with a record of interview denying the offending. It was submitted that there was no necessary ethical dilemma for any counsel representing the applicant should the applicant choose to rely on the record of interview. The Court was told that the Crown would not be seeking to rely upon any incriminating conduct arising out of the applicant’s evidence on the voir dire; nor would the prosecution employ any such evidence as an admission. Moreover, the trial judge could utilise s 136 of the Evidence Act to control the use of evidence if it was thought that such use might cause unfairness to the applicant. That section, it was submitted, is an ‘additional mechanism’ — in the event that the applicant gives evidence — that could be utilised by the defence to impose some kind of limitation on the use of any evidence given by the applicant on the voir dire before Judge Carlin.

The respondent submitted that this was a case where there is recorded evidence by a cognitively impaired complainant who has been cross-examined and it has been put to him that the applicant did not commit the offences alleged. The prosecution would make nothing of the fact that it was not put to the complainant that KH had committed the offences (if that was the defence that the applicant chose to run).
It was submitted that the absence of corroboration, were the applicant to give evidence about the third-party confession, does not mean that the applicant’s case is hopeless or that he doesn’t have a defence.
As to the conduct of the voir dire before Judge Carlin and the nature of the prosecutor’s cross-examination of the applicant, the respondent submitted that the applicant had made a forensic choice to enter the witness box and give evidence. The applicant was represented by counsel who made an informed and deliberate decision. It was submitted that the task for Judge Carlin was to assess how unfair the situation was for the applicant that ZA’s statement would not go to the jury. Part of that assessment was to gauge how much help ZA’s statement might be to the applicant’s defence. Judge Carlin concluded, so it was submitted, that ZA’s statement ‘didn’t assist him and [her Honour] went through the reasons why it did not assist him’. It was submitted that one of the reasons why ZA’s statement didn’t assist the applicant was the inconsistency between the applicant’s record of interview and the content of ZA’s statement.
The respondent submitted that it was against that background that the prosecutor asked the applicant on the voir dire: ‘where were you sleeping?’ That question was not objected to and there was no criticism of the question having been asked in this Court’s reasons in Haris.
The respondent submitted that the questioning by the prosecutor on the voir dire was proper because it was linked to the value of ZA’s statement. Directly linked to the value of that statement was its consistency or inconsistency with the account given by the applicant in his record of interview. The prosecutor’s questioning was also relevant, it was submitted, to the credibility of the applicant himself when he gave evidence about the conversation in Dandenong. It was submitted that, as this Court had determined in Haris, Judge Carlin had to assess the value of ZA’s statement to the applicant; part of the value of this statement is the ‘credibility of whether the conversation took place and how truthful’ ZA’s statement was.
In these circumstances, it was submitted, it was appropriate for the prosecutor to ask an ‘open question’ in the terms that the prosecutor did, namely: ‘where were you sleeping that night?’ The answer that the prosecutor got was, it was submitted, conveniently consistent with the terms of the third-party confession but was inconsistent with the record of interview. The complainant was not asked ‘Did you penetrate the victim?’:
That was not the question, it was a question about where he was sleeping that night and it was a correct question directed towards the inconsistency between the record of interview, ‘I was in the bedroom all night’, and the purported confession, that he had actually said — had actually said in response to — this is the thing, the statement of ZA says that [the applicant] had actually said in response, as if what was being said was incredible, ‘Well, how could you have done that when I was sleeping next to him?’
It was submitted that even if ZA’s statement was before the jury the applicant would still be confronted in the conduct of his case with an inconsistency brought about by what he said in his record of interview and the content of the alleged confession in Dandenong. The forensic dilemma presented by this inconsistency was not created by the Crown or as a result of any oppressive or unfair conduct by the Crown; rather, ‘it’s a dilemma that he’s facing because of a conflict between this confession that he says took place and his account to the police.’
The respondent pointed out that the applicant was not misled about the prospect of future criminal proceedings when he chose to give evidence on the voir dire, nor was the applicant compelled to give evidence on the voir dire. It ‘can’t be right’, it was submitted, that the applicant’s own decision to enter the witness box on the voir dire and submit himself to proper questioning could give rise to a stay.
There was otherwise, it was submitted, a strong public interest in continuing the proceeding.

Ground 1 — consideration

This Court in Haris described principles that are applicable when a permanent stay is sought. They are worth repeating:
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.[21] 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.[22]
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.[23] 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’.[24]
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.[25]
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.[26] 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.[27]
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.[28]
[21] R v Glennon (1992) 173 CLR 592, 605–6 (Mason CJ and Toohey J) (‘Glennon’).
[22]R v Edwards (2009) 83 ALJR 717, 723 [33] (Hayne, Heydon, Crennan, Kiefel and Bell JJ) (‘Edwards’).
[23]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].
[24]Dupas v The Queen (2010) 241 CLR 237, 250 [35] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
[25] Walton (1993) 177 CLR 378, 392; Edwards (2009) 83 ALJR 717, 720–1 [23].
[26]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].
[27]McGee (a pseudonym) v The Queen [2020] VSCA 146, [132] (Maxwell P, T Forrest and Weinberg JJA). See further Lucciano (2021) 287 A Crim R 529, 539–40 [43]–[44] (McLeish, Niall and T Forrest JJA).
[28]Walton (1993) 177 CLR 378, 395–6 (Mason CJ, Deane and Dawsin JJ).
The High Court in GLJ, albeit against a civil context, gave voice to statements of principle applicable in cases where a stay is sought on the basis of necessary unfairness or unfair and unjustifiable oppression. The real issue in deciding whether or not to grant a permanent stay is the congruence or otherwise of holding a trial and rendering a verdict with the fundamental norms underlying our legal system[29] — namely, its adversarial character.[30] The grant of a permanent stay to prevent an abuse of process involves the ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system.[31]
[29]GLJ (2023) 97 ALJR 857, 867–8 [22] (Kiefel CJ, Gageler and Jagot JJ).
[30]Ibid, 866–7 [19].
[31]Ibid, 862–3 [3].
Only an exceptional case justifies the exercise of the power of a court to permanently stay proceedings.[32] Neither necessary unfairness nor such unfairness or oppression as to constitute an abuse of process justifying a permanent stay of proceedings equates with a mere risk that a trial might be unfair.[33]
[32]Ibid.
[33]Ibid, 867 [21].
This Court’s reasoning in Haris is not irrelevant to the issues that now fall for determination. The Court in Haris upheld the reasoning and ultimate conclusion reached by Judge Carlin. As Judge Carlin put it, ZA’s statement had ‘the potential to reflect unfavourably upon [the applicant]’. Judge Carlin found that ‘neither the circumstances in which [ZA] made his statement nor its contents inspire any confidence as to its veracity or reliability. To the contrary.’ Judge Carlin considered that: ‘In terms of 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’.
Judge Carlin noted, further, that ZA’s statement was inconsistent with the applicant’s record of interview and with the applicant’s evidence on the voir dire. Indeed, so Judge Carlin found, there were ‘significant differences’ with the applicant’s evidence on the voir dire.
The relevance of this, for present purposes, is that the Court in Haris was not persuaded that Judge Carlin made any error. Judge Carlin, so this Court concluded, was bound to conduct the analysis that she did ‘in order to determine the actual effect of the unavailability of ZA’s evidence on the applicant’s defence’[34] and her Honour came to the correct conclusion:
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.[35]
[34]Haris [2023] VSCA 205, [65] (Emerton P, Beach and McLeish JJ).
[35]Ibid, [68].
To the extent that this conclusion carries with it this Court’s agreement with the proposition that ZA’s statement was lacking veracity or reliability, nothing was said on the present application to gainsay this. This conclusion remains of obvious relevance to the present application.
The applicant’s submissions on the present application focussed, as appears above, on different matters.
Insofar as the absence of KH is concerned, as the respondent submitted, there are means by which KH’s evidence could be put before the jury as an exception to the hearsay rule. Were that to occur, that evidence would not assist the applicant. As Judge Carlin noted, KH’s statement presents largely as consonant with the prosecution case. It is at best speculative to suggest that were the terms of his alleged confession put to him, KH would agree that he had confessed to sexually assaulting the complainant. The terms of KH’s police statement make it seem far more likely that KH would deny having made the confession alleged.
It is not apparent that KH had any knowledge of the complainant prior to the evening of the offending. KH’s statement was taken over a year after the alleged offending and in a context where KH said that the applicant ‘often went drinking in Swan Hill and would bring people back’. KH said only that ‘I do not know a person named [the applicant’s name]’. But KH was, in his statement, prepared to concede: ‘Maybe if I saw him I would know him’. The prospect of any meaningful inconsistency being established in this regard seems remote.
Nor are things much different when it comes to KH’s statement that ‘I have no information about anything relating to [the applicant] and an incident at our home’. Against the backdrop of KH having stated that he ‘would not always see … [the people that the applicant would ‘bring … back’] … as I was sleeping in the room’,[36] nothing about the complainant’s reaction to having been offended against (even with the light of the loungeroom being turned on) makes it anything more than speculative that, at 3.00am in the morning, KH would have become aware of the events described by the complainant.
[36]By this KH can be taken to have meant the bedroom.
As to the benefit of having ZA in the witness box, that is to say above and beyond being able to rely on the substance of his statement (a matter upon which this Court pronounced in Haris), this was but faintly pressed. It is difficult to disaggregate ZA’s presence in the witness box from the veracity and reliability of what he might say if he were called (even if it happened that ZA required the assistance of an interpreter). The veracity and reliability of ZA’s statement was pronounced upon by this Court in Haris and found wanting.
As to the questioning of the applicant by the prosecutor on the voir dire, in the circumstances of this case we cannot accept that it was improper to ask the applicant the question: ‘On that night where did you sleep in the flat?’ R v Hammond[37] concerned the admissibility of evidence of an accused’s confession. The English Court of Criminal Appeal held that evidence that showed that a confession was true was relevant to the question whether the confession was voluntarily made.
[37][1941] 3 All ER 318 (‘Hammond’).
However, in Wong Kam-Ming v The Queen,[38] a majority of the Privy Council held that the conclusion reached in Hammond, namely, that the truth of a confession was relevant to its voluntariness, was in error. The majority concluded that Hammond was wrongly decided.[39]
[38][1980] AC 247 (‘Wong Kam-Ming’).
[39]Ibid, 255–7 (Lord Edmund-Davies delivering the judgment of the majority).
In MacPherson Gibbs CJ and Wilson J reviewed these authorities when considering whether an accused may be asked on a voir dire about the truth of his or her confession. Their Honours observed as follows:
It was pointed out that it remains doubtful to what extent an accused person who gives evidence on a voir dire may be cross-examined, and to what extent the evidence which he gives on the voir dire will be admissible on the trial. This is no doubt true. The Judicial Committee, in Wong Kam-Ming v. The Queen (1980) AC 247 , decided, by a majority, that on a voir dire an accused may not be asked, in cross-examination, whether a confession, which he alleged was made involuntarily, was true, and held that R. v. Hammond (1941) 28 Cr App R 84 was wrongly decided. In Burns v. The Queen (1975) 132 CLR 258, at p 263, three members of this Court agreed with the view taken in R. v. Hammond that evidence that shows that a confession, if made, was true is relevant to the question whether it was made, but noted that it has been suggested that there are strong reasons why the judge on the voir dire should exercise his discretion to prevent the accused from being cross-examined as to his guilt. In Wong Kam-Ming v. The Queen it was further held that if the accused gives evidence at the trial, he may be cross-examined to show that he has departed from the evidence which he gave on the voir dire, provided that the impugned confession has been held to be admissible but not otherwise. These questions remain to be decided in this Court.[40]
[40]MacPherson (1981) 147 CLR 512, 523–4.
To the extent that the common law in Australia concerning these matters may be said to be ‘unsettled’, two members of the Court of Criminal Appeal in South Australia in R v Hein,[41] after a survey of relevant authority, observed in 2013 that:
In the years since Wong Kam-Ming was decided the High Court of Australia has not found it necessary to deal with the questions it raised (see McPherson v The Queen (1981) 147 CLR 512) and the intermediate courts of Australia have not been inclined to accept without qualification the propositions established by it. Without descending into the detail of the various decisions in the state courts of appeal (for example, R v Semyraha [2001] 2 Qd R 208, Frijaf v The Queen [1982] WAR 128 and R v Mardlin [2004] WASC 73) the preponderance of authority seems to be that whether questioning as to the truth should be permitted turns on a precise categorisation of the issue on the voir dire. The authorities seem to favour the view that it is not the case that an accused person may never be asked in a voir dire hearing concerning the voluntariness of a confession whether or not the confession is true. As Bray CJ said, ‘such questions may sometimes be directly relevant to the issue and at other times not’.[42]
[41](2013) 117 SASR 444 (Vanstone J and Kelly J).
[42]Ibid, 453 [27] (Vanstone J), 455 [40] (Kelly J). Bray CJ’s dicta found at the end of the extracted quotation is taken from R v Wright [1969] SASR 256, 260 (‘Wright’).
These authorities were concerned with the questioning of an accused about the truthfulness of their own confession. That issue is now governed by s 189(3) of the Evidence Act.[43]
[43]Section 189(3) states: ‘In the hearing of a preliminary question about whether an admission made by an accused should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission’s truth or untruth is to be disregarded unless the issue is introduced by the accused.’ Section 189(1) gives content to the phrase ‘preliminary question’.
The present case does not concern questioning about a confession or admission made by the applicant. At common law, and now by application of the Evidence Act, relevance provides a touchstone concerning what may be asked of an accused should he or she choose to give evidence on a voir dire.[44]
[44]Evidence Act, ss 4, 55 and 56.
The applicant, relying on Wong Kam-Ming (as described in MacPherson), and more generally, challenges the relevance of the prosecutor’s questioning.
As the respondent submitted, and as this Court found in Haris, in the instant case the issues requiring determination by Judge Carlin included the veracity and reliability of ZA’s statement as well as the related issue concerning the actual effect on the applicant’s defence of the unavailability of ZA’s evidence.[45] If the test concerning the propriety of questioning of an accused on a voir dire is relevance, then the question by the prosecutor — ‘On that night where did you sleep in the flat?’ — was proper.
[45]Haris [2023] VSCA 305, [60], [65] (Emerton P, Beach and McLeish JJA).
That question was relevant to the credit and reliability of ZA’s statement insofar as ZA’s statement maintained that at Dandenong the applicant had said that he had slept in the lounge room ‘next’ to the complainant. If, say, the applicant, in answer to the prosecutor’s open-ended question, adhered to his version given in the record of interview then this would have made it less likely that ZA’s statement was true. Although the applicant on the voir dire, by stating that he had slept in the loungeroom, went some way towards giving a version that was consistent with ZA’s statement, he did not travel the whole distance. He disputed that he slept ‘next’ to the complainant. Yet ZA had recounted that the applicant had said that he did. The cross-examination concerning where the applicant slept ultimately, and relevantly, produced the concession by the applicant that he had never said at Dandenong (a) that he had slept next to the complainant and (b) that he had done so because he had wanted to look after the complainant in the knowledge of KH’s habits. This was relevant to the credit and reliability of ZA’s statement.

Moreover, the question by the prosecutor was relevant, more generally, to the actual effect that the unavailability of ZA’s evidence might have on the applicant’s defence. To that end, it was relevant to inquire whether the applicant was, in effect, maintaining the account that he gave in his record of interview. If he was maintaining this account, then the loss of ZA’s statement — which had the applicant saying that he was in the loungeroom rather than in the bedroom — was less significant. Establishing that he had never slept ‘next’ to the complainant and, indeed, had never said to ZA that he had done so (and the reason why) also meant that the loss of ZA’s statement was less important.
Once the applicant on the voir dire gave evidence contrary to what he said in his record of interview it was open to the prosecutor to seek to impugn the applicant’s credit. The Crown, after all, clearly did not accept the truth of what the applicant said about KH having confessed at Dandenong. If the applicant admitted to having lied in his record of interview, this was relevant to whether he was telling the truth about KH’s confession. The puttage by the prosecutor that the applicant had lied in his record of interview in order to distance himself from the complainant may be thought to have strained at the limits of what was relevant on the voir dire, but the question was not objected to, it did not elicit the answer that it sought, and, as the prosecutor made clear, no part of the Crown’s case on the general issue would include an assertion of incriminating conduct.
It may be accepted that the elucidation of differences between the applicant’s version of events and the version given by ZA may not have assisted the Crown’s case of concoction. But the Crown case on the voir dire before Judge Carlin was not limited to concoction.
The applicant’s case in this Court concerning the voir dire was predicated upon the impropriety of prosecuting counsel’s questioning of the applicant. That questioning was not improper given the issues that Judge Carlin had to decide on the stay application. That said, and depending upon how the upcoming trial is to be conducted and the issues that fall for consideration (which from this vantage point are difficult to predict), the conclusion reached that the prosecutor’s questioning was not improper might not foreclose other arguments that may be raised at trial concerning the admissibility, or the use that may be made, of evidence adduced at the voir dire.[46] But these are questions that can be dealt with by the trial judge as and when they arise.
[46]See Wright [1969] SASR 256, 265–6 (Bray CJ); R v Brophy [1982] AC 476; Evidence Act, ss 90, 135, 136 and 137.
The ethical position of the applicant’s counsel at trial may be influenced by the nature of any instructions that counsel receives. It is impossible to conclude that any counsel ultimately retained by the applicant will necessarily be embarrassed by virtue of what the applicant said on the voir dire before Judge Carlin.
The applicant was not compelled to give evidence on the voir dire;[47] nor was he misled about the prospect of any future criminal proceedings.[48] The applicant, it would seem, entered the witness box on the voir dire before Judge Carlin in order to improve his position on the stay application by seeking to underscore the value of what he had lost due to ZA’s unavailability and the consequent inadmissibility of ZA’s statement. In doing so, he made the forensic choice to subject himself to cross-examination as to relevant matters.
[47]Cf X7 (2013) 248 CLR 92.
[48]Cf Lucciano (2021) 287 A Crim R 529.
Insofar as it was submitted that there was evidence that the applicant had brought ZA to the attention of his legal representatives and that there was no evidence to suggest that the applicant knew that KH was going to die, so much may be accepted. Nevertheless, it cannot be ignored, from the defence perspective, that were ZA’s evidence to become admissible by some means, the applicant could well face an argument from the prosecution alleging concoction in similar terms to what occurred at the voir dire. The suggestion of concoction was, essentially, that the applicant waited until KH had died before bringing ZA to the attention of investigative authorities. It was conceded by counsel for the applicant in this Court that the concoction argument mounted by the prosecutor at the stay application before Judge Carlin possessed a legitimate evidential foundation.
This leaves the written submissions which under the heading ‘State of the evidence’ appeared to impugn the police investigation as well as the oral submission made about the appearance of Jafar Hussain in the Crown Opening. In large part the criticisms of the police investigation made or implied in the applicant’s Written Case centred upon the prospect of mistaken identity and an apparently insufficient police investigation concerning that issue.
As has already been noted, it was not the applicant’s case before Judge Chettle to allege that the police investigation was in any manner deficient. In this Court it was not alleged that Judge Chettle had erred by failing to consider a deficient police investigation. Having decided that Judge Chettle’s decision is capable of appellate review by application of the correctness standard, it is difficult to assess the correctness of Judge Chettle’s decision by reference to a case that was not put below.
Even if this Court was able to take into account the criticisms of the police investigation that are now made, or are at least implied, those criticisms would not move this Court (a) to conclude that Judge Chettle’s decision was incorrect or, alternatively, (b) to order a stay. No sufficient evidential basis was laid below that would justify this Court concluding that the police investigation was deficient in the manner described. When it comes to the possibility of mis-identification, the complainant when he spoke to police was in no doubt that a person that he had known for some time — the applicant — was the person that had offended against him. The only other realistic candidate nominated was KH (by reason of KH’s purported confession). By the time police learned of KH’s purported confession, KH was dead.

Conclusion

This Court in Haris determined that Judge Carlin was correct to refuse the applicant’s application for a permanent stay. Having regard to relevant principle and to the additional matters that were relied on before Judge Chettle and pressed in this Court, the applicant has failed to establish that Judge Chettle was incorrect to refuse the applicant’s application for a permanent stay. Depending on how the trial is run, there are means by which the trial judge can deal with any forensic disadvantage on the applicant’s part that may be thought to arise. Furthermore, had this Court been called upon, itself, to order that the prosecution be permanently stayed,[49] we would have refused such application.
[49]CPA, s 300(2)(b)(i).
Having upheld Ground 2, we would give the applicant leave to appeal. We would, however, affirm Judge Chettle’s decision to refuse the application for a permanent stay.
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[2024] VSCA 9

20 February 2024