Hines (a pseudonym) v The King
[2023] VSCA 168
•24 July 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0166 |
| STEWART HINES (a pseudonym)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]So as to prevent any risk of prejudice to the proper administration of justice, these reasons for judgment have been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST and KENNEDY JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 July 2023 |
| DATE OF JUDGMENT: | 24 July 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 168 |
| JUDGMENT APPEALED FROM: | DPP v [Hines] (County Court of Victoria, 4 and 7 November 2022, Judge Dalziel) |
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CRIMINAL LAW – Interlocutory appeal – Indictment containing two charges of rape – Alternative charges of sexual assault not included – Whether failure to include charges of sexual assault an abuse of process – Whether probative value of applicant’s admissions outweighed by the risk of unfair prejudice – Leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr I Crisp | ||
| Respondent: | Mr G Bucchorn | ||
Solicitors | |||
| Applicant: | Vassis & Co | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
KENNEDY JA:
Introduction
On 4 November 2022, a judge of the County Court refused to grant a permanent stay of criminal proceedings against the applicant; and, on 7 November 2022, refused an application under s 137 of the Evidence Act 2008 to exclude various admissions allegedly made by the applicant (‘the rulings’ or ‘the interlocutory decisions’).
Pursuant to certification by the trial judge under ss 295(3)(a) and (b) of the Criminal Procedure Act 2009 (‘CPA’) given on 7 November 2022, the applicant seeks leave to appeal against the interlocutory decisions, on two grounds that contend that the trial judge erred —
1… by refusing to grant a permanent stay of the proceeding in circumstances where the [applicant] has made admissions of sexual misconduct not the subject of any charges on the current indictment and having regard to those admissions in the absence of other sexual offence charges on the indictment, there is a substantial risk of a compromised verdict in that the jury would convict the [applicant] of one or both charges of rape, and such risk cannot be cured by direction.
2… in refusing to exclude evidence of all admissions made by the [applicant] in relation to sexual misconduct pursuant to Section 137 of the Evidence Act 2008 in circumstances where the probative value of the admissions is outweighed by the danger of unfair prejudice to the [applicant].
In our view, the proposed appeal is utterly without merit. Leave to appeal must be refused. Our reasons follow.
Background
By way of background, an indictment filed in the County Court charges the applicant with the digital-vaginal rape (charge 1) and penile-vaginal rape (charge 2) of ‘HS’.[2]
[2]Contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
The Summary of Prosecution Opening[3] alleges that the applicant[4] and HS[5] met on ‘Facebook’ in August 2018. On 25 October 2018, the two agreed to meet as ‘friends’ so that the applicant could take HS out for her birthday. They met in person for the first time at an inner suburban hotel at about 6.30 pm on 3 November 2018. During that evening they drank alcohol and had a meal together, before going to booked accommodation a little after midnight. HS stated that by that time she was intoxicated. She removed her boots and jacket and then fell asleep face-down on the bed. A short time later HS awoke to find that the applicant, who had removed her jeans, was behind her digitally penetrating her vagina (charge 1). The applicant then leaned over her and inserted his penis into her vagina (charge 2), whilst HS repeatedly told him to stop.
[3]See CPA, s 182.
[4]Born in December 1985.
[5]Born in November 1972.
On 4 November 2018, after they had gone their separate ways, HS sent the applicant a message via Facebook Messenger complaining that he had ‘sexually assaulted’ her. The next day, 5 November 2018, the applicant sent an email to HS in the following terms:
I know you don’t want to talk to me at the moment but I needed to tell you that I went to Korumburra police station to turn myself in for what I did to you… I know what I did was wrong I wasn’t happy with myself what I did to you... I fucked up I was all my own doing … I fully understand if you want to bring the police involved I know what I did was wrong and I take full responsibility for my actions.
It appears that on 5 November 2018 the applicant had indeed gone to Korumburra Police Station and spoken to Senior Constable Carl Baido. The applicant told Senior Constable Baido that he had concerns that he may have committed a sexual assault. He stated that he tried to have sex with a female on a first date, but she said ‘no’ so he stopped.
HS reported the matter to police on 12 October 2020. Thereafter, on 21 October 2020, she engaged in a ‘pretext’ telephone conversation with the applicant, in which he stated: ‘I fucked up and came on too strong’; ‘it was my mistake’, in response to an allegation that HS had woken up with the applicant inside her; ‘Yeah’, in response to an allegation that the applicant had sexually assaulted HS; and ‘I pushed it too far’, in response to an allegation that HS had told the applicant to stop.
The applicant was arrested and interviewed on 23 November 2020. Among other things, he told police that he did not think that he put either his fingers or his penis inside HS’s vagina — he was 90 per cent sure there was no penetration — although he rubbed her vagina with both his fingers and penis. He said he rubbed HS’s vagina with his fingers as ‘a little bit of foreplay, stimulation, to see if they were going to proceed’, but did not know if she was awake or semi-awake. The applicant said that he only thought it was a bit of foreplay to see if they could progress. They had both been having a good time. If he had taken it too far he was sorry.
As disclosed by the Defence Response to Prosecution Opening for Trial,[6] the defence case is that ‘this is a sexual touching case [and] that there were no acts of sexual penetration’. Further, the applicant denies that at the relevant time ‘the complainant was asleep or so intoxicated that she was unaware of what was occurring’.
[6]See CPA, s 183.
Submissions to the trial judge on permanent stay
The applicant applied to the trial judge for a permanent stay of the proceedings on the basis that it is unfair that the indictment does not include charges of sexual assault as alternatives to the two charges of rape.[7] Counsel for the applicant submitted that if charges of sexual assault were on the indictment, the applicant could and would plead guilty to them. There is a risk, counsel submitted, that in light of the applicant’s admissions the jury will be confused by the absence of the sexual assault charges. Further, not having those charges on the indictment means that the applicant cannot make it clear from the outset that he admits that conduct but not the penetration. Counsel for the applicant contended that the jury would be left in the position where, even if they were not convinced beyond reasonable doubt that there was penetration, they would be aware that the applicant admitted to some sexual misconduct, and thus there would be a real risk that the jury would not act in accordance with the judge’s directions and find the applicant guilty of rape as a compromise.
[7]By virtue of s 40(1) of the Crimes Act 1958, a person is guilty of sexual assault if he or she touches another person; the touching is sexual; the other person does not consent to the touching; and the person does not reasonably believe that the other person consents to the touching.
Counsel for the prosecution submitted to the trial judge that the case was about penetration. If the jury accept HS’s evidence, they will be able to find beyond reasonable doubt that penetration occurred, and, therefore, that the charges of rape are made out. The fundamental question, the prosecutor submitted, is whether the applicant can have a fair trial. She submitted that the prosecution case turns on whether the jury accept that penetration did occur on either or both of the charges. The jury will be directed that they must find penetration proved beyond reasonable doubt in order to find the applicant guilty. They will be directed that if they are not satisfied of penetration beyond reasonable doubt, then they must acquit him. Finally, the prosecutor submitted that there is no fundamental defect going to the root of the trial and that nothing raised by defence counsel reaches the high threshold permitting a permanent stay being granted.
Submissions to the trial judge concerning admissions
After the trial judge refused a permanent stay, the applicant’s counsel sought exclusion of the following alleged admissions under s 137 of the Evidence Act 2008:
· those made in the email sent by the applicant to HS on 5 November 2018;[8]
· those made to Senior Constable Baido on 5 November 2018;[9]
· those contained in various answers in the record of interview, amounting to admissions that the applicant touched HS’s vagina with his finger and penis; going to his lack of certainty as to consent; and related to his (lack of) reasonable belief concerning consent.[10]
[8]See [6] above.
[9]See [7] above.
[10]See [9] above.
The applicant’s counsel submitted that the jury would be overwhelmed by this evidence. It would be dangerous for the jury to hear these admissions in view of the main issue in the case; that is, penetration or non-penetration. Counsel submitted that these admissions carried an immense amount of prejudice where the applicant had effectively admitted to offences which are not going to be able to be dealt with by the jury. There was thus a great danger of compromise, in that the jury would choose to convict the applicant because of his admissions, even though not satisfied beyond reasonable doubt that there had been penetration. Counsel argued that it was an unusual case where a person admits to some misconduct amounting perhaps to another offence. Given the manner in which the indictment is crafted, this case is unique and dangerous for the applicant.
Counsel for the prosecution submitted it was speculative to consider that the jury might compromise in the way suggested by the defence. It is quite clear that the issue in this case is penetration. Further, the prosecutor submitted that, in any event, the admissions made by the applicant when he is now facing rape charges might arouse sympathy for him rather than prejudice. She submitted that, in order for the evidence to be excluded, s 137 requires there to be unfair prejudice which cannot be cured. Any risk of unfair prejudice could be cured by direction. Moreover, the applicant’s admissions are highly probative. One of the issues in any rape case is the element of reasonable belief in consent. The applicant’s statements about his state of mind are highly relevant to that issue.
The permanent stay ruling
In her ruling refusing a permanent stay, the judge observed that she needs to ensure that the applicant receives a fair trial. Fairness to the applicant is not the only consideration. There is a strong public interest in the resolution of serious charges by a jury. An important premise in jury trials, the judge said, is that ‘it is presumed that a jury will abide by their oath and follow the directions given by the trial judge’ (although the courts are mindful that in some circumstances there is a risk of improper reasoning which no direction can cure). In the present case, there is a risk that the jury may be unable to find beyond reasonable doubt that penetration occurred, but, being aware of the applicant’s admissions of misconduct, they reach a verdict of guilty on rape due to an unwillingness for the applicant to be wholly acquitted in the face of his own admissions. The judge then said:
In addressing this risk, I think it relevant that there are more differences between the prosecution case and the defence position than simply whether there was actual penetration. Some of these are, the complainant says that earlier in the evening at a hotel, she and the [applicant] were just chatting and listening to the music. [The applicant] told the police that they were kissing at that time.
When they got back to the hotel room, the complainant says that she fell asleep straight away, fully clothes except for his shoes and jacket. The [applicant] says that she undressed before going to bed right down to her nightie or her singlet. He says that they then kissed and lay on the bed together whilst he touched her vagina in the nature of foreplay and then rubbed his penis on the outside of her vagina. But he maintained he did not put his fingers or penis inside her vagina. The [applicant] said that after that the complainant fell asleep.
The [applicant] told the police, later in the interview, that he was not 100 per cent sure she was awake during the sexual activity and that he did not have any conversation with her to ascertain if she was consenting. He said that he was around 90 per cent sure there was no penetration.
The descriptions given by the [applicant] and the complainant are at odds as to the lead-up to the alleged offending as well as to whether there was actual penetration. The differences in the two accounts of events are not limited to simply whether there was penetration or not.
Whilst there is a risk of improper reasoning by the jury, I consider that clear directions addressing this very issue will be sufficient to prevent such a miscarriage. The jury can and will be directed as to the elements of the offence, that penetration is in issue, that the prosecution must prove penetration occurred beyond reasonable doubt, and importantly, that the jury cannot substitute the [applicant’s] admissions to touching and sexual misconduct (not amounting to rape) for a finding of penetration and thus find him guilty of rape.
I also take into account not only the importance of ensuring the [applicant] has a fair trial but also that there is a public interest in the resolution of these serious offences, and there is a need to maintain public confidence in the administration of justice.
In summary, in turning back to the statements of principle, I conclude that the form of the indictment does not amount to an abuse of process and there is not a fundamental defect in the manner in which the prosecution will present the case which cannot be cured by direction.
The admissions ruling
In refusing to exclude the various admissions relied upon by the prosecution, the judge said:
I accept that there is a degree of risk of unfair prejudice in view of the way in which the case is put and the absence of the sexual assault charges from the indictment. This has been canvassed at length in the discussion and I won’t re-state it here.
As I said in the permanent stay ruling, I do think that any risk of improper reasoning by a jury, which would amount to unfair prejudice to the accused, can be cured by directions. As I said to counsel in the discussion, I consider that clear and explicit directions addressing this very issue can be given at the outset of the case following the opening address and reply, and in my final directions. I also consider that it would be appropriate for the prosecution to be explicit that the issue in the trial is penetration and that she [sic] must, or should, make it clear that if the jury were only satisfied of sexual assault rather than penetration, then it is their duty to acquit.
I therefore refuse to revisit the permanent stay application ruling … and I do not exclude this evidence pursuant to s 137 or more broadly the unfairness discretion.
Proposed ground 1: Submissions in this Court
In support of the first proposed ground, counsel for the applicant submitted in writing that a ‘fundamental defect constituting an abuse of process has prejudiced his rights to a fair trial’. This is so because the applicant’s admissions of sexual assault: relate effectively to uncharged offences which are not alternatives to the charges of rape; cannot be used in his defence to the charged offences; generate a high degree of prejudice which is not amenable to amelioration by judicial direction; may prejudice the jury’s consideration of the rape charges; may lead to compromised verdicts; and will place the applicant in an unfair forensic position.
Counsel for the respondent submitted in writing that the judge correctly applied the applicable principles. The judge’s ruling was correct.
Proposed ground 2: Submissions in this Court
Under cover of the second ground, counsel for the applicant submitted that the evidence of the applicant’s admissions ought to have been excluded to preserve his right to a fair trial.
The respondent’s counsel submitted that the probative value of the evidence of admissions is high. There is no unfair prejudice since there is no real risk that the jury will use the evidence in an impermissible manner. It must be assumed that the jury will follow judicial directions as to the permissible use of the evidence.
Consideration, proposed ground 1: There was no foundation for a stay
Sexual assault — which carries a maximum penalty of 10 years’ imprisonment[11] — is not an alternative verdict to rape — which carries a maximum sentence of 25 years’ imprisonment[12] (and a standard sentence of 10 years)[13] — since an allegation of rape does not amount to or include, expressly or impliedly, an allegation of sexual assault.[14]
[11]Crimes Act 1958, s 40(2).
[12]Crimes Act 1958, s 38(2).
[13]Crimes Act 1958, s 38(3).
[14]See CPA, s 239(1); Mareangareu v The Queen [2019] VSCA 101, [33, [37]–[46]] (Priest, Hargrave and Emerton JJA); Chaarani & Ors v The Queen (2020) 61 VR 353, 374–5 [71]–[72] (Priest, Kaye and T Forrest JJA) (‘Chaarani’); Duca v The Queen (2020) 62 VR 214, 222 [25]–[26] (Maxwell P, T Forrest JA). See also Crimes Act 1958, ss 421 to 435.
The applicant contends that the prosecution’s failure to include charges of sexual assault on the indictment, as charged ‘alternatives’ to the two rape charges, is a ‘fundamental defect’ and an ‘abuse of process’ which has ‘prejudiced his rights to a fair trial’. Those contentions are completely untenable.
In McCready,[15] Young CJ (with whom McGarvie and Ormiston JJ agreed) made it plain that
it is for the Crown to decide upon what offences an accused person is brought to trial by way of presentment or indictment, and, although the Court unquestionably has power to prevent an abuse of its process, it is not for the Court to decide, speaking generally, upon what offence the Crown should proceed.
[15]R v McCready (1985) 20 A Crim R 32, 39 (‘McCready’). See also Chaarani, 368 [56]–[57] (Priest, Kaye and T Forrest JJA); Chung v The Queen (2007) 175 A Crim R 579, 590 [59] (Spigelman CJ).
Young CJ also observed:[16]
Before a court could interfere with a charge presented by the Crown on the grounds that it was an abuse of process, there would have to be some very strong evidence or basis for thinking that the Crown was indeed seeking to achieve an ulterior purpose by the procedure adopted. That would indeed be an abuse of process. It may not be the only abuse of process, but the mere choice of one section rather than another under which to prosecute, even though the section charged carries a higher penalty than the alternative section that might have been used, is not in my view an indication of an abuse of process.
[16]McCready, 40 (emphasis added).
Further, in Maxwell, Gaudron and Gummow JJ observed:[17]
It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute,[18] to enter a nolle prosequi,[19] to proceed ex officio,[20] whether or not to present evidence[21] and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted.[22] The integrity of the judicial process — particularly, its independence and impartiality and the public perception thereof — would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.[23]
[17]Maxwell v The Queen (1996) 184 CLR 501, 534 (‘Maxwell’) (citations as in original; emphasis added).
[18]See Connelly v Director of Public Prosecutions [1964] AC 1254 at 1277; R v Humphrys [1977] AC 1 at 46: Barton v The Queen (1980) 147 CLR 75 at 94–95, 110.
[19]See R v Allen (1862) 1 B & S 850 [121 ER 929]; Barton v The Queen (1980) 147 CLR 75 at 90–91.
[20]See Barton v The Queen (1980) 147 CLR 75 at 92–93, 104, 107, 109.
[21]See, eg, R v Apostilides (1984) 154 CLR 563 at 575.
[22]See R v McCready (1985) 20 A Crim R 32 at 39; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 604–605.
[23]Barton v The Queen (1980) 147 CLR 75 at 94–95; Jago v District Court (NSW) (1989) 168 CLR 23 at 38-39, 54, per Brennan J; at 77–78, per Gaudron J; Williams v Spautz (1992) 174 CLR 509 at 548, per Deane J; Ridgeway v The Queen (1995) 184 CLR 19 at 74-75, per Gaudron J.
And in Chow, Kirby P said:[24]
It is the function of prosecutors, not of judges, to determine whether a person will be prosecuted for a criminal offence and, if so, upon what offence. The judge is, at least ordinarily, bound by the charge which the prosecutor elects to bring: see R v Brown (1989) 17 NSWLR 472 at 477f. Under our criminal justice system, the judge has no right to require the prosecutor to proceed on a ‘higher’ rather than a ‘lesser’ charge. Necessarily, the prosecutor will often have a great deal of material (some of it inadmissible) which will be weighed in electing whether or not to prosecute and if so for what offence. The judiciary is not well placed to supervise such decisions. They belong, in any case, by statute, tradition and the principled demarcation of the prosecutorial and judicial functions, not to the judiciary but to the prosecution.
[24]Chow v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 593, 604–605. See also Weininger v The Queen (2003) 212 CLR 629, 654 [80] (Kirby J).
Although the courts exercise no control over the decision to commence criminal proceedings,[25] superior courts retain control over such proceedings so as to ensure that the accused receives a fair trial.[26] Hence, superior courts have inherent jurisdiction to stay criminal proceedings which are an abuse of process, the jurisdiction to grant a stay having the dual purpose of preventing an abuse of process, or the prosecution of a criminal proceeding which will result in an unfair trial.[27] As was observed in Williams:[28]
If a permanent stay is sought to prevent the accused from being subjected to an unfair trial, it is only natural that the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed. In other words, the court must be satisfied that there are no other available means, such as directions to be given by the trial judge, of bringing about a fair trial. Jago was such a case. Consequently, the judgments in that case gave emphasis to the necessity that the court should satisfy itself upon this point before granting the relief sought.[29]
If, however, a stay is sought to stop a prosecution which has been instituted and maintained for an improper purpose, it by no means follows that it is necessary, before granting a stay, for the court to satisfy itself in such a case that an unfair trial will ensue unless the prosecution is stopped. There are some policy considerations which support the view that the court should so satisfy itself. It is of fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences, and that persons charged with such offences should not obtain an immunity from prosecution. It is equally important that freedom of access to the courts should be preserved and that litigation of the principal proceeding, whether it be criminal or civil, should not become a vehicle for abuse of process issues on an application for a stay, unless once again the interests of justice demand it. …
[25]See CPA, s 159.
[26]Barton v The Queen (1980) 147 CLR 75, 96.
[27]Williams v Spautz (1992) 174 CLR 509, 518 (Mason CJ, Dawson, Toohey and McHugh JJ) (‘Williams’).
[28]Ibid, 519.
[29][Jago v District Court (NSW) (1989) 168 CLR 23] 34, 48-49, 54, 56-58, 72-73, 75.
As we have said, the applicant’s counsel submitted that the failure to include charges of sexual assault on the indictment creates prejudice to the applicant due to the risks of jury compromise. The logic of that submission eludes us. Indeed, we would have thought that any risk of compromise would be enlarged if charges of sexual assault were included in the indictment. As the Defence Response makes clear,[30] ‘this is a sexual touching case’, in which the applicant denies any ‘acts of sexual penetration’. Presumably, if the jury fails to be satisfied beyond reasonable doubt on either or both charges that sexual penetration occurred, they will acquit him of rape. Since there are no alternatives available, he will not face any prospect that, in defiance of their oath or affirmation, the jury will return a compromise verdict.
[30]See [10] above.
We are also unable to see that the jury will be confused by the absence of sexual assault charges on the indictment.[31] Clearly, the absence of any need to explain alternative verdicts will result in simplification of the jury’s task. Nor are we able to see that the failure to have charges of sexual assault on the indictment will mean that the applicant will be prevented from making it clear from the outset that he admits sexual conduct but not penetration. Presumably, his counsel will tell the jury as much at the outset of the trial in his response to the prosecutor’s opening.[32]
[31]See [11] above.
[32]CPA, 225.
There is nothing from which it could be concluded that the prosecution’s decision not to include sexual assault charges on the indictment was underpinned by any improper purpose, or will result in a trial which is unfair to the applicant.
The first proposed ground must fail.
Consideration, proposed ground 2: There was no basis for excluding admissions
The contention that the probative value of the evidence of the applicant’s alleged admissions is outweighed by the risk of unfair prejudice is entirely without substance.
In our view, the probative value of the alleged admissions is high. The applicant’s email to HS of 5 November 2018 appears to be a clear acknowledgement of wrongdoing, and his statements to Senior Constable Baido are clearly capable of demonstrating a belief that he had sexually assaulted HS. Moreover, his answers to police questions in the record of interview constitute admissions that sexual activity — embracing digital-vaginal and penile-vaginal contact — occurred, coupled with further admissions bearing on consent and reasonable belief in consent.[33]
[33]See Crimes Act 1958, ss 36 to 36B.
There is little or no risk that a properly instructed jury will use the evidence of alleged admissions in an impermissible way.
Proposed ground 2 must also fail.
Conclusion
Leave to appeal against the interlocutory decisions must be refused.
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