Hermanus (a pseudonym) v The Queen
[2015] VSCA 2
•28 January 2015
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 1st day of January 1975 and the 31st 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 was committed for trial on 2 October 2013. At a directions hearing in the County Court on 29 October 2013, a timetable was set for the filing of documents. A Summary of Prosecution Opening was filed on 14 August 2014, and the Defence Response was filed on 11 September 2014.
A final directions hearing was conducted in the County Court on 12 September 2014. Separate indictments were filed containing charges concerning MAP and with respect to a second complainant, SE.[6] No indictment was filed with respect to a third complainant, RW, and proceedings concerning her allegations were later discontinued. The applicant’s trial commenced on 28 October 2014. Written submissions seeking a permanent stay with respect to the charges concerning MAP were filed. Submissions in response were filed the following day.
[6]SE was given the pseudonym Carla Lyndsay in the County Court.
On 5 November 2014, a jury was empanelled to try the charges concerning SE. The trial aborted on 7 November 2014, and a fresh jury was empanelled on 10 November 2014. On 14 November 2014, the jury acquitted the applicant of two charges of indecent assault, but convicted him of a further charge of indecent assault and two charges of buggery.
Argument proceeded before the trial judge on the application for a permanent stay with respect to the charges involving MAP on 17 November 2014. Basha[7] hearings were also conducted with respect to MAP and SE, and their respective mothers, GG and MM.
[7]R v Basha (1989) 39 A Crim R 337.
The trial judge refused the application for a permanent stay on 20 November 2014, and, as I have said, on 21 November 2014 the judge certified that her decision refusing the stay was of sufficient importance to the trial to justify it being determined on an interlocutory appeal.
The factual background
In the course of the ruling on the application for a permanent stay, the judge noted that the two charges of indecent assault that the applicant faces with respect to his niece, MAP, arise out of a single episode said by the complainant to have occurred in 1975, when she was five years of age. The assaults are alleged to have occurred when the applicant was minding the complainant whilst her parents were at work. MAP’s account as contained in her statement — and as confirmed at committal — is that the applicant took her into his bedroom, laid her on the bed and removed her underwear before touching and licking her vagina (charge 1), and removed his pants and made her touch his penis (charge 2). According to the complainant, the applicant was standing or leaning over her on the bed with his back to the door. The events were interrupted by the applicant’s daughter, SE (who was seven or eight years old), coming into the room. The applicant had to quickly stop and pull his pants up. MAP said that she got off the bed and put her pants back on. SE’s evidence is that she did not see any acts of sexual misconduct involving her father and MAP.
Her Honour observed that the evidence is that, apart from a complaint by MAP and SE to the applicant’s wife in 1980 (which was ignored), the earliest that SE was asked by anyone in authority whether she saw the applicant do anything to MAP was in 1999, some 24 years after the event (although the judge remarked that the evidence ‘is equivocal and maybe contradictory’, so that it may be that SE was not asked about the matter until either 2008 or 2012).
The judge noted that the prosecution also sought to rely on the evidence of uncharged acts and evidence of complaint. MAP alleges that the applicant, on a number of occasions after the charged events, when she and her parents were at the applicant’s home, would follow her to the toilet and touch her vagina whilst she was urinating. She said this occurred on a number of occasions until 1977, when her family moved to Canberra.
MAP, the judge observed, also alleges that the applicant touched her on the vagina over her clothing on an occasion in 1980 when she was aged 10 years, the applicant, his wife and daughter, SE, having visited her family in Canberra. She said that SE and another child were in the room at the time of the touching, but that she did not think the other child saw what had happened.
MAP’s account is that, after the applicant touched her in Canberra, she complained to SE about the applicant touching her, which prompted SE to reveal that he was also touching her. According to MAP, she and SE then told the applicant’s wife that the applicant was touching them, and she, in effect, ignored their complaints.
When SE made her statement to police in 2012, she made no mention of the 1980 complaint; but when asked about it in the committal proceedings in 2013, confirmed MAP’s account of the 1980 complaint. The judge said that SE and MAP had given different versions about whether they had spoken about MAP’s account in her statement of the 1980 complaint, prior to SE giving her confirmatory evidence of it at committal. Her Honour noted that the applicant’s wife denies that any complaint was made to her by SE and MAP in 1980.
Significantly for present purposes, MAP made a formal complaint to the police in 1999 about the applicant’s conduct. At that time she made a four page statement and was informed that an investigation was being undertaken. Eventually, however, she was informed that the police had not authorised the brief for prosecution. In the meantime the police brief has been lost or destroyed.
Later, in 2012, SE made a complaint to police concerning her father’s conduct towards her. MAP then made a further statement to police. When interviewed by police, the applicant denied any sexual offending against his daughter, SE, or his niece, MAP.
Police ultimately charged the applicant with sexual offences against SE and MAP. The events founding the charges were alleged to have occurred in 1975, some 37 years earlier.
Following a committal, the prosecution filed two indictments in the County Court. One indictment concerned the charges relating to SE, and the other concerned the charges relating to MAP.
After a trial of the charges relating to SE, the applicant was found guilty of two charges of buggery. He was acquitted of two charges of indecent assault associated with one of the first buggery charge, but was convicted of another charge of indecent assault associated with the second buggery charge. As the judge observed, the evidence before the jury was that the acts of buggery occurred in the applicant’s home about two days apart, on occasions when he had sole care of SE after school, whilst her mother was at work.
The decision to refuse a permanent stay
In determining the application for a permanent stay, the trial judge was guided by this Court’s judgment in FJL.[8]
[8]R v FJL [2014] VSCA 57 (‘FJL’).
The grounds relied on by the applicant before the trial judge were the combination of actual and presumptive prejudice flowing from the delay between the alleged offending and the matter coming to trial, and specific prejudice caused by the loss of the police brief following MAP’s complaint to police, and subsequent investigation, in 1999.
On any view, the judge observed, the delay between the alleged offending and the matters coming to trial is ‘extreme’ and is ‘sufficient to give rise to some degree of probable forensic disadvantage’. Indeed, consistently with FJL,[9] as her ‘starting point’ the judge accepted that there was a degree of probable forensic disadvantage arising from the delay. The next step in her Honour’s analysis was to identify specific forensic disadvantage, and thus ‘to examine evidentiary unfairness arising from delay with respect to the evidence relating to the charges’. Having done so, the judge said that she had ‘to consider whether any unfairness can be met by steps short of a stay’.
[9]Ibid [8].
So far as the charged acts were concerned, her Honour came to the view that the matters identified by counsel for the applicant as giving rise to presumptive or actual disadvantage were ‘no more or less than the matters generally arising from a trial in respect of allegations of this antiquity’, which could ‘all properly be dealt with by a forensic disadvantage direction’.
With respect to the evidence of uncharged acts, the trial judge was of the view that the probative value of the evidence was outweighed by the danger of unfair prejudice,[10] and she excluded it. Further, subject to there being no suggestion of recent invention by the defence, the judge also excluded evidence of the 1980 complaint.
[10]Evidence Act 2008, s 137.
The trial judge then turned to consider any actual prejudice which might have flown from the loss of the police brief. Her Honour thought the position to be somewhat analogous to that which obtained in FJL,[11] although ‘more complicated’, since, in addition to the loss of the 1999 police statement made by MAP occasioned by the loss of the police brief, ‘there is possibly other evidence that would or could have been, on the 1999 brief’. The judge observed that there is ‘some highly confusing evidence’ about what SE (and, perhaps, her mother) said to the police in the course of the 1999 investigation, but since SE ‘has consistently maintained that she never saw her father sexually assault [MAP], there is nothing in the loss of the 1999 brief that [the judge] can see that acts to the disadvantage of the [applicant]’. As to the suggestion that there ‘may have been’ a record of interview with the applicant, the judge remarked that ‘whether the [applicant] was interviewed by the police or not, and about what … is within the [applicant’s] knowledge and something he can instruct his counsel about’. She further observed, that it had ‘not been suggested that if interviewed, the [applicant] gave an exculpatory account which has now been lost, or that there is any disadvantage to him by the loss of the opportunity to have that exculpatory account, made 24 years after the event, put before the jury’.
[11]FJL, [83]–[85].
Ultimately, the trial judge was ‘not satisfied that the forensic disadvantage to the [applicant] by reason of presumptive or actual prejudice, and the loss of the 1999 brief, is such that the only remedy available is a stay’. She said that by excluding the evidence of the uncharged acts and of the 1980 complaint, she had ‘taken the appropriate, but lesser step of ensuring that the [applicant] is not beset by the prejudice of evidence whose [sic.] probative value is outweighed by the risk of unfair prejudice’. The applicant, the judge observed, ‘is not denied the means of cross-examining the complainant and her mother to establish inconsistency in her accounts of what the complainant said in her 1999 complaint’. Further, the judge said that there is ‘no evidence which by itself indicates or supports the drawing of an inference that [SE] has ever said she saw the accuse touch [MAP]’. SE ‘is available to give evidence she did not see her father touch [MAP]’. Moreover, the judge held that a forensic disadvantage direction ‘is clearly warranted’.
As will become clear, I can detect no error in the trial judge’s approach.
Competing contentions
In this Court, the applicant acknowledged that a permanent stay should only be utilised in rare circumstances where no other remedy is available. This was, however, a case where a stay should have been granted in order to avoid an unfair trial.[12]
[12]Jago v District Court of New South Wales (1989) 168 CLR 23 (‘Jago’), 30–31 (Mason CJ).
The applicant submitted that it is the loss of the full brief of evidence from 1999, in combination with the inordinate delay and the very young age of the complainant (five years old) that amounts to ‘the defect that sits at the heart of this prosecution’. Having rhetorically posed the question, ‘why is the lost brief of evidence so critical to this case?’, it was submitted that, due to the unsatisfactory state of the evidence, the reasons for the non-authorisation of the applicant’s prosecution based following compilation of the 1999 police brief ‘cannot be fully known and are lost with the brief’. The prosecution’s position on this point, the applicant submitted, is that it is likely that the prosecution was not proceeded with because SE denied being sexually assaulted by the applicant. This is, however, so the applicant contended, speculative. There is ‘a range of inferences’ that could be drawn from the decision not to prosecute the applicant, none of which are more likely than the other in circumstances where no copies of the documents, statements or notes that comprised the brief are available. It is known that the brief contained a statement from MAP, and statements from SE and MM (and possibly statutory declarations produced by a lawyer); and it is ‘believed’ the brief contained a record of interview with the applicant. Moreover, it was submitted that the ‘implication’ is that the brief contained ‘other information arising from the investigation’ and the consequent decision not to lay charges.
Furthermore, the applicant submitted, the delay of 39 years ‘is at the outermost limit of what should be accepted by a court in relation to probable prejudice’, and ‘this amount of time in itself raises grave concerns about the fairness of any trial and incurable prejudice to the applicant’. This is compounded, the applicant submitted, ‘by the tender age of the complainant at the time of the allegations’ and ‘made unacceptable by the loss of the 1999 brief’. Beyond MAP’s evidence there is no evidence that the offending occurred; and, so the applicant submitted, there is ‘no probative surrounding or contextual evidence to support the allegations or allow them to be tested’. The allegations were explored for the first time in 1999, but that investigation — which is ‘crucial to a fair trial’ — is ‘lost’.
Finally, the applicant submitted that this case should be distinguished from cases of mere delay and presumptive prejudice. For a combination of reasons, this is an extreme case where the only available remedy to avoid an unfair trial is the granting of a permanent stay.
The respondent submitted that this Court could not intervene unless it was demonstrated that the judge’s discretion miscarried.[13] Thus, before the applicant could succeed, it must be shown that, in the context of forensic disadvantage directions and the exclusion of evidence, and conviction following a trial ‘would bring the administration of justice into disrepute’.[14]
[13]House v The King (1936) 55 CLR 499.
[14]Jago, 34 (Mason CJ).
Counsel for the respondent submitted that, by the time the complaint was made to police in 1999, the relevant events already were 24 years old. The loss of any material when the allegations were already old is far less significant than the loss of contemporaneous evidence. MAP’s lost statement only gives rise to possible prejudice, which can be ameliorated by a forensic disadvantage direction. Moreover, the reason for charges not being proceeded with in 1999 is irrelevant. That the 1999 brief may have shed light on the decision not to prosecute is ‘speculative’, and, the respondent submitted, could not in any event legitimately be put before the jury. Further, the prosecution will call SE, so that the applicant will have the benefit of her evidence that she did not see the applicant interfere with the complainant.
Ultimately, the respondent submitted that the trial judge carefully followed FJL. Having regard to the availability of forensic disadvantage directions tailored to the case and designed to mitigate prejudice to the applicant, and further having regard to the exclusion of evidence of complaint and uncharged acts, the trial judge’s decision to refuse a stay plainly was correct.
Applicable principles
This Court may grant leave to appeal if satisfied that ‘it is in the interests of justice to do so’ having regard to several criteria, including that the determination of the appeal against the interlocutory decision may ‘render the trial unnecessary’.[15]
[15]Criminal Procedure Act 2009, s 297(1)(b)(i).
Since the power to order a stay is discretionary, the onus in the first place lay on the applicant to demonstrate the existence of facts which would enliven the discretion, and to satisfy the trial judge that a permanent stay was the only remedy available to prevent an abuse of process. Given that this Court is called upon to review the trial judge’s exercise of discretion, intervention is warranted only if it is demonstrated that the refusal of the permanent stay was not reasonably open to the judge in the sound exercise of that discretion. Thus, leave to appeal might be granted only if the judge acted upon a wrong principle, took an irrelevant matter into account, failed to take account of a material matter or mistook the facts, or if the judge’s decision is unreasonable or plainly unjust.[16]
[16]House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ). See KJM v The Queen (No 2) (2011) 33 VR 11, 12–13 [9]–[14]; Singh v The Queen (2011) 33 VR 1, 6–7 [26]; DPP v Marijancevic (2011) 33 VR 440, 444–5 [13]–[16].
Authority establishes that a court should stay an indictment if, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness, or if the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.[17] A permanent stay will only be granted in circumstances which are rare or exceptional.[18]
[17]Walton v Gardiner (1993) 177 CLR 378, 392 (Mason CJ, Deane and Dawson JJ). See also Jago; R v Glennon (1992) 173 CLR 592; Dupas v The Queen (2010) 241 CLR 237; R v Edwards (2009) 255 ALR 399 (‘Edwards’).
[18]Williams v Spautz (1992) 174 CLR 509, 529; Jago.
As I have said, the trial judge derived guidance from FJL. The following propositions may, I think, be drawn from the judgment of Osborn JA (with whom Redlich JA and Sifris AJA agreed) and the cases there cited:
· First, the exercise of the power to stay must be exceptional since it results in effect in a refusal to exercise jurisdiction. The primary responsibility for deciding whether criminal proceedings should be maintained lies with the Executive and not with the Court.[19]
[19] FJL, [17]. See also Jago, 61 (Deane J), 76 (Gaudron J).
· Secondly, in cases involving delay, to justify a permanent stay of criminal proceedings there must be a fundamental defect which goes to the root of the trial of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences. The accused must demonstrate that the delay is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute.[20]
[20]FJL, [18]. See also Jago, 33-4 (Mason CJ); TS v R [2014] NSWCCA 174, [1] (Leeming JA), [61]–[64] (Bellew J).
· Thirdly, circumstances that the court should consider in determining an application for a stay include, the length of the delay; reasons given by the prosecution to explain or justify the delay; the accused’s responsibility for and past attitude to the delay; proven or likely prejudice to the accused; and the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime.[21] The critical factors are on the one hand the proven or likely prejudice to the accused, and on the other, the public interest in the prosecution and conviction of the guilty.[22]
[21]FJL, [19]. See also Jago, 61 (Deane J).
[22]FJL, [21].
· Fourthly, in order to justify a stay, it is the probability of unacceptable unfairness — rather than the possibility — that is critical.[23]
· Fifthly, a trial will not necessarily be unacceptably unfair even where relevant documents, recordings or other kinds of evidence have been lost or destroyed, or witnesses have died, so that the jury will be called upon to determine issues of fact on less than all of the relevant material which might bear upon the issues thrown up for determination.[24]
· Sixthly, the trial judge may avoid obstacles to a fair trial by evidentiary rulings — including by the exclusion of evidence which is technically admissible, but which might operate unfairly against the accused — and by directions to the jury designed to counteract any prejudice that the accused might otherwise suffer.[25]
[23]FJL, [22]. See also Edwards, 403 [23].
[24]FJL, [23]. See also Edwards, 405 [31].
[25]FJL, [25]-[26]. See also Jago, 47 (Brennan J), 77-8 (Gaudron J).
Recently, in CT,[26] the Supreme Court of New Zealand — having reviewed the approaches taken in New Zealand, England and Wales, Canada and Australia — summarised the principles to be applied in determining applications for the stay of criminal proceedings based on delay, several of which complement the propositions which may be drawn from FJL:
(a) Delay between offending and prosecution does not erase criminal liability and the adoption of limitation periods is for Parliament and not the courts. There is no scope for a presumption that after a particular time memories are too unreliable for the purposes of a criminal trial.
(b) The adequacy or otherwise of the explanation for delay may be relevant to credibility but perceived inadequacy of such explanation of itself is not a ground for a stay, at least in the case of serious crime.
(c) A judge should grant a stay if persuaded that, despite the operation of the burden and standard of proof and the steps which a trial judge must take to mitigate the risk of prejudice, there cannot be a fair trial.
(d) The exercise does not turn on whether the Judge is satisfied on the balance of probabilities as to any particular item of alleged prejudice (for instance, that but for the delay there would have been identifiable evidence which would have assisted the defendant). Rather what is required is a judicial evaluation based on assessments of the circumstances as they are at the time of trial and of the likely prejudicial effects of the delay.
(e) Material to such assessments will be the availability (or more commonly, the unavailability) of defence witnesses, relevant documents and independent evidence of whereabouts and activity, the general impact of time on memory, any deterioration in the defendant’s physical or mental health (with consequent impact on ability to mount a defence), indeterminacy as to the specifics of the alleged offending (particularly where an isolated act of offending is in issue) and the apparent strength or weakness of the Crown case.
(f) While a defendant facing serious charges will usually have to be able to point to tangible delay-related prejudice, a combination of a very lengthy delay and a weak Crown case may justify a stay.
(g) Judges must approach stay applications on the basis that an evaluative assessment is required of the facts of the case at hand without any presupposition as to what the result should be.
[26]CT v The Queen [2014] NZSC 155, [32] (Elias CJ, McGrath and William Young JJ). See also [59] (Glazebrook and Arnold JJ).
Consideration
There will always be difficulties for an accused person in mounting an effective defence after a delay of the order in this case. A number of the difficulties that will inevitably be encountered were identified by Nicholson J in Jacobi[27] (a case where the delay was between 25 and 36 years):
The appellant will face the problems inherent in meeting allegations about events said to have occurred many years ago, involving quite young children. These problems include:
· the reliability or the accuracy of a complainant’s recollections about which evidence is given so many years after the events;
· the difficulty confronting a trier of fact when assessing the veracity and reliability of a person, not by hearing and observing their evidence given when young, soon after the events are said to have taken place and with the child’s contemporary language and understanding but after hearing and observing evidence given in the language of an experienced adult with all of the possibilities of reconstruction and re-interpretation that this entails;
· the difficulty confronting the appellant having to go well back in time to recall, check and verify the accuracy of events about which evidence is given; and
· the difficulty confronting the appellant in endeavouring to obtain and produce documentary evidence or oral evidence from other witnesses which might put in question the evidence of a complainant as to events, times and places.
These problems confront any accused person who wishes to defend historical child sex allegations and are inevitable where there is significant delay in the bringing of a prosecution. …
[27]R v Jacobi (2012) 114 SASR 227, 253 [104]-[105]. See CT v The Queen [2014] NZSC 155, [13] (Elias CJ, McGrath and William Young JJ). See also Penney Lewis, A comparative examination of forensic disadvantage directions in delayed prosecutions of childhood sexual abuse, (2005) 29 Crim LJ 281, 281–2.
I sympathise with the notion that any trial relating to alleged events that are decades old inevitably will be attended by a degree of unfairness and prejudice to the accused. Indeed, nobody experienced in trials involving allegations of ‘historical’ sexual offences could fail to sympathise with that view.[28] Since events and circumstances contemporaneous to the events the subject of charges are usually incapable of any meaningful investigation, more often than not the accused is driven to a bald denial of misconduct, without the ability to present independent evidence contradicting or casting doubt on a complainant’s account. The opportunity to present an alibi is, in my experience, virtually non-existent. Moreover, with respect to those who hold a different view, I doubt the capacity of the average juror to readily comprehend the true extent of the unreliability and inaccuracy of memory where there has been the intervention of many years between the alleged events and their recounting.[29]
[28]See Longman v The Queen (1989) 168 CLR 79 (‘Longman’), 91 (Brennan, Dawson and Toohey JJ). Cf Annie Cossins, Time Out for Longman: Myths, Science and the Common Law, (2010) 34 MULR 69.
[29]See Longman, 107–8 (McHugh J). See also John Rowan QC, Old Allegations of Sexual Abuse, [2006] NZLJ 302.
The law contemplates, however, that even in cases of very long delay, it remains possible for an accused to receive a trial which is not unacceptably unfair, despite the trial being attended to some extent by unfairness, prejudice or forensic disadvantage. So much underpinned the High Court’s reasoning in Longman;[30] and so much must underpin the Legislature’s provision for forensic disadvantage warnings, as provided for in s 61 of the Crimes Act 1958 and s 165B of the Evidence Act 2008.[31]
[30]Above n 28.
[31]An examination of the two sections, and the reasons for their enactment, may be found in Greensill v The Queen (2012) 37 VR 257, 265–71 [38]–[53].
In this case, the trial judge was satisfied of the probability of some forensic disadvantage to the applicant flowing from the long delay. In order to ameliorate that forensic disadvantage, the judge took the step of excluding evidence of uncharged acts and delay,[32] and resolved to give a forensic disadvantage direction. The judge’s approach in those respects was, so it seems to me, in accordance with applicable authority.
[32]See [40] above.
Further, the judge assessed the effect of the loss of the police brief from 1999, and whether that loss might render the contemplated trial unacceptably unfair. Her Honour concluded that the trial would not be rendered unacceptably unfair by reason of that loss. In my view, it was open to the judge to reach that view. To contend, as the applicant does, that the lost material may have advanced his defence is purely speculative. Further, for the sake of completeness, I should add that, even had the lost brief contained a reason for not prosecuting the applicant which was based upon an adverse opinion of the putative evidence of the complainant, the existence of that opinion could not have advanced the applicant’s case, since such an opinion would be irrelevant and inadmissible.[33]
[33]Evidence Act 2008, s 76(1).
The applicant has failed to demonstrate that the trial judge’s decision to refuse a permanent stay was one that was not open.
For the foregoing reasons, leave to appeal should be refused.
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