Haris (a pseudonym) v The King (No 2) - [2024] VSCA 9

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2024] VSCA 9
Decision Date: 20 February 2024

CaseChat Overview and Summary

In the case of Haris (a pseudonym) v The King (No 2), the Supreme Court of Victoria was called upon to consider an interlocutory appeal against a decision to deny a permanent stay of proceedings due to the unavailability of witnesses. The appellant, Haris, sought the stay on the basis that the absence of these witnesses would significantly prejudice his ability to mount a proper defence. Additionally, Haris challenged the decision to permit cross-examination regarding events on the night of the alleged offence. The Crown argued that the evidence was relevant and necessary for a fair trial.

The primary legal issues before the court were twofold. Firstly, the court had to determine the appropriate standard of appellate review applicable to the interlocutory decision. The court applied the correctness standard, as articulated in GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 97 ALJR 857 and Haris (a pseudonym) v The King [2023] VSCA 205. Secondly, the court considered whether the cross-examination of Haris regarding the events on the night of the alleged offence was permissible under the principles established in 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, and R v Hein (2013) 117 SASR 444.

The court found that the primary judge's decision was correct. It upheld the correctness standard of review and determined that the cross-examination was permissible as it was relevant to the events of the night in question. Consequently, the application for leave to appeal was granted, but the interlocutory decision was affirmed. The court concluded that the absence of the witnesses did not warrant a permanent stay, and the trial could proceed with the evidence available.

Orders