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Hermanus (a pseudonym) v The Queen

Hermanus (a pseudonym) v The Queen

Case [2015] VSCA 2 28 January 2015

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0274

MARTIN HERMANUS (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	MAXWELL P and PRIEST JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 January 2015
DATE OF JUDGMENT:	28 January 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 2
JUDGMENT APPEALED FROM:	R v [Hermanus] (Unreported, County Court of Victoria, Judge Hampel, 20 November 2014)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Stay – Fair trial – Trial of alleged sexual offences – Delay – Alleged offending occurred nearly 40 years ago – Child complainant – Original complaint to police lost – Whether irremediable prejudice – Whether forensic disadvantage warning sufficient – No error in refusal of stay – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms R Sleeth with Ms D Lamovie	Victoria Legal Aid
For the Respondent	Mr G J C Silbert QC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Priest JA. I agree with his Honour, for the reasons he gives, that no error has been demonstrated in the ruling of the trial judge and that leave to appeal should therefore be refused.

PRIEST JA:

Introduction

Pursuant to certification[2] of the trial judge given on 21 November 2014, the applicant seeks leave to appeal against an interlocutory decision of 20 November 2014, in which the judge refused permanently to stay proceedings on a County Court indictment.
[2]Criminal Procedure Act 2009, s 295(3)(b).

There are two charges in the indictment. Both allege that the applicant indecently assaulted[3] ‘MAP’[4] ‘between the 1^st day of January 1975 and the 31^st day of December 1975’, that is, 39 years ago.
[3]Crimes Act 1958, s 55(1).
[4]In the County Court, the complainant was given the pseudonym ‘Celia Marigold’.

By a notice filed 15 December 2014,[5] the applicant seeks leave to appeal against the interlocutory decision on a single ground which asserts that the trial judge ‘erred by refusing to rule that the forensic disadvantage to the [applicant] is such that the only remedy available is a stay’.
[5]By virtue of s 298(1)(a) of the Criminal Procedure Act 2009, the notice should have been filed within 10 days of the interlocutory decision. Since the respondent does not oppose the extension of time, and the failure to file the notice within time is satisfactorily explained in an affidavit of the applicant’s solicitor sworn 15 December 2014, pursuant to s 313 I would grant an extension of time in which to commence the appeal.

For the reasons that follow, I would refuse leave to appeal.

Procedural history

On 13 July 2010, the applicant was charged with offences against the complainant MAP and two others. Following a contested committal, he…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Hermanus (a pseudonym) v The Queen

Details

AGLC: Hermanus (a pseudonym) v The Queen [2015] VSCA 2
Case: [2015] VSCA 2
Decision Date: 28 January 2015

CaseChat Overview and Summary

Hermanus sought an interlocutory appeal against the refusal of a stay of proceedings against him on the basis that the delay in the trial of sexual offences alleged to have occurred nearly 40 years ago, combined with the loss of the original police complaint, would result in an unfair trial. The original complaint was lost, and the complainant, a child at the time of the alleged offences, was unable to provide evidence. The appeal was heard in the High Court of Australia. The legal issues before the Court were whether the delay and loss of evidence would result in an irremediable prejudice and whether a warning about the forensic disadvantage would be sufficient to ensure a fair trial. The Court considered the factors relevant to determining whether a stay should be granted, including the length of the delay, the reasons for the delay, and the impact of the delay on the accused's ability to mount a defence. The Court held that there was no error in the decision to refuse the stay, as the warning provided to the jury about the forensic disadvantage was sufficient to ensure a fair trial. The Court found that the delay and loss of evidence did not result in an irremediable prejudice, as the warning provided to the jury would enable them to properly assess the reliability of the evidence. The Court refused leave to appeal.

The Court's decision in Hermanus highlights the importance of ensuring that the trial of criminal offences is conducted fairly, even in cases where there has been a significant delay and loss of evidence. The Court held that a warning about the forensic disadvantage was sufficient to ensure a fair trial, and that the length of the delay and loss of evidence did not result in an irremediable prejudice. The decision provides guidance to courts in considering applications for a stay of proceedings in cases where there has been a significant delay and loss of evidence. The Court's refusal of leave to appeal confirms the correctness of the decision of the lower court to refuse the stay.

Orders