Jones (a pseudonym) v The Queen
[2017] VSCA 111
•16 May 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0241
| MILTON JONES (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: | WHELAN and FERGUSON JJA and KIDD AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 March 2017 |
| DATE OF JUDGMENT: | 16 May 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 111 |
| JUDGMENT APPEALED FROM: | DPP v [Jones] (Unreported, County Court of Victoria, Judge Parsons, 13 October 2016) |
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CRIMINAL LAW – Appeal – Refusal of application for permanent stay – Refusal to certify for interlocutory appeal – Application to review refusal to certify, whether risk of collusion by complainants, forced introduction of prejudicial material and delay created unacceptable unfairness in forthcoming trial – Premature application for stay – Evidence on collusion incomplete and conflicting – Ability to direct jury to reduce prejudicial effect of any evidence introduced – Limited disadvantage from death of witnesses resulting from delay – Application refused.
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| APPEARANCES: | Counsel | Solicitors | |
| For the Applicant | Dr M FitzGerald | Victoria Legal Aid | |
| For the Crown | Mr B F Kissane QC with Ms A M Moran | Mr J Cain, Solicitor for Public Prosecutions | |
WHELAN JA
FERGUSON JA
KIDD AJA:
The applicant unsuccessfully applied to a County Court judge for the permanent stay of the indictment. He then unsuccessfully sought a certificate from the judge under s 295(3)(b) of the Criminal Procedure Act 2009 (‘the Act). The applicant now applies under s 296 of the Act for a review of the refusal to certify and for leave to appeal under s 297.
For the reasons which follow, we have concluded that the application should be dismissed.
Prosecution’s case
The prosecution alleges that on occasions during 1975 to 1977 the applicant interfered with three boys who were known in the proceeding as BD, HD and RN whilst the applicant was working and residing at a state government facility for neglected children, Sutherland Homes for Children, where the boys lived. The prosecution has charged the applicant with six charges of indecent assault, one charge of attempted buggery and one charge of buggery.
It is alleged that during this period the applicant was working as a welfare officer, as part of a placement required to complete his associate diploma in welfare studies, and was living in a caravan on the Sutherland Homes property.
On an occasion between 1 January 1975 and 30 July 1976, the prosecution alleges that the applicant invited HD to his caravan for some lollies and a drink. HD was 12 or 13 years old at the time. The applicant allegedly masturbated HD’s penis while masturbating his own. The applicant then allegedly attempted to insert his penis into the complainant’s anus before HD ran off. HD said that that night he told his ‘Cottage Mother’, Joyce Uren, about what happened; Uren informed HD she would talk to the home’s superintendent Richard Brodie about it. These events give rise to one charge of indecent assault and one charge of attempted buggery.
On an occasion between 1 January 1975 and 30 July 1977, the prosecution alleges that the applicant invited BD for a trip to a fish and chip chop for dinner. BD was about seven years old at the time. On their return, the applicant allegedly took BD to a shower block where he masturbated BD’s penis, made BD masturbate the applicant’s penis, and placed his penis between BD’s legs and rubbed it back and forth. The applicant then took BD back to his caravan where he again rubbed his penis between BD’s legs before inserting his penis into BD’s anus. BD did not tell anyone what had occurred. This occasion gives rise to four charges of indecent assault and one charge of buggery.
On an occasion after September 1975, the applicant drove RN and other boys home from Scouts at the Plenty Scout group. RN was about 13 years old at the time. On their return, the applicant invited RN to stay the night in his caravan. The applicant gave RN lollies and asked to see his penis. RN refused and went to sleep. Later RN awoke to find the applicant masturbating RN’s penis while masturbating his own. He ran out of the caravan and returned to his cottage. RN says that at the cottage, he told Joyce Uren what had happened; she replied that she would deal with it in the morning. This occasion gives rise to one charge of indecent assault.
Permanent stay principles
The relevant propositions in relation to the granting of a permanent stay have been recently summarised in the judgment of Osborn JA (with whom Redlich JA and Sifris AJA agreed) in R v FJL:
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.
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.
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. 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.
Fourthly, in order to justify a stay, it is the probability of unacceptable unfairness — rather than the possibility — that is critical.
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.
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. [2]
[2](2014) 41 VR 572, 575-7, [18]–[26] (citations omitted). The propositions were re-stated in Hermanus (a Pseudonym) v The Queen (2015) 44 VR 335, 342–3 [40].
Finally, the power to order a stay is discretionary. 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.[3]
[3]House v The Queen (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]; Hermanus (a Pseudonym) v The Queen(2015) 44 VR 335, 341 [38].
It follows that the applicant has a very substantial obstacle to overcome in order to succeed in an application for a permanent stay. The obstacle is higher still when seeking to challenge the refusal of a trial judge to stay a prosecution.
The grounds for the stay application
The applicant identifies no specific error as such in the approach taken by the learned trial judge. Rather the applicant submits that it was not reasonably open to the learned trial judge to refuse his application for a permanent stay of the proceedings. The complaint is directed at the outcome.
In submissions in this Court, the applicant pursued three main limbs to his challenge to the judge’s refusal to grant a permanent stay. He argued that their cumulative effect rendered the prospective trial necessarily unfair.
The first and second limbs concern the anticipated introduction into evidence of prejudicial material through the cross-examination of two complainants.
The third limb concerns historical disadvantage, principally the death of two witnesses.
The applicant’s arguments in this Court were significantly narrower than those advanced before the trial judge.
In order to place into context the three limbs still pressed in this Court, it is necessary to briefly examine the argument which has been abandoned and the procedural setting in which the permanent stay argument was made.
Background and the abandoned unreliability arguments
The permanent stay argument commenced as a tendency evidence argument. The prosecution had served a tendency notice in which it argued that the evidence of each of the three complainants was cross-admissible.
The possibility of collusion was raised by the defence, which it contended might render the evidence inadmissible as tendency evidence. As a result, the three complainants each gave evidence and were cross-examined on behalf of the applicant on a voir dire. A fourth witness, Nola Mills, also gave evidence[4].
[4]Ms Mills was a cottage mother at Sutherland Homes and had attended a reunion with two of the complainants.
Collusion or contamination was explored through cross-examination (and some argument) on the following topics:
· the contact between RN (and his sister YN) with Berry Street[5] throughout 2011 about a possible compensation claim;
[5]Berry Street is an organisation which amalgamated with Sutherland Homes subsequent to the events in question.
· whether Coral Loft (who was appointed by Berry Street as the independent investigator into RN’s matter) suggested the applicant as a possible perpetrator to RN;
· the timing of the contact with Berry Street and the making of RN’s police statement in 2012;
· the contact between RN, BD and Nola Mills at a Sutherland Homes reunion in April 2012;
· the timing of BD making his police statement in July 2012 (ie subsequent to the reunion);
· the reigniting of the friendship between RN and HD after the reunion and prior to RN’s second statement;
· the timing of HD’s statement (May 2012) after he became aware of Berry Street paying out compensation; and
· the similarity between HD’s allegations and RN’s allegations.
After the evidence was called, but before the tendency evidence arguments were fully heard or ruled upon, the permanent stay application was made.
While the tendency evidence argument was never completed, the applicant’s trial counsel contended that the evidence of collusion, infection and suggestion bore upon his application for a permanent stay.
There were two categories of this evidence: the evidence of alleged cross collusion and infection between the three complainants[6] and the evidence of alleged police suggestion to the complainants RN and BD.[7]
[6]See above at [19].
[7]See below at [29]-[44] in relation to RN and [45]-[59] in relation to BD.
The applicant argued before the trial judge that the evidence of collusion, infection and suggestion in relation to the identification of the applicant as the perpetrator so undermined the credibility and reliability of the three complainants that to proceed with the trial would be unacceptably unfair and amount to an abuse of process.
The applicant’s counsel resiled from this argument on the appeal. Unreliability of evidence is no longer pressed as a basis for a permanent stay.
In the circumstances, we do not need to address in any detail, these unreliability arguments advanced before the trial judge. It is sufficient to say that they have the flavour of an anticipatory unsafe and unsatisfactory argument. A trial judge has no power to stay a prosecution upon the basis that the verdicts are likely to be unsafe and unsatisfactory.[8] Questions of credibility and reliability are quintessentially matters for a jury to consider and determine.[9] Charges can of course be stayed if they are doomed to fail. But that test is onerous — the failure of the prosecution case must be inevitable.[10] If there were evidence — ‘even if tenuous or inherently weak or vague’ — capable of supporting the charge, the charge would not be doomed to fail.[11] We hasten to add that none of the arguments before the trial judge were advanced upon the basis that the prosecution case on any charge was doomed to fail.
[8]Doney v R (1990) 171 CLR 207, 214–5.
[9]Ibid.
[10]Little (a Pseudonym) v The Queen [2015] VSCA 62 [73]–[76]. These principles were repeated in DPP v Brownlie [2015] VSCA 147 [9]–[11].
[11]Doney v R (1990) 171 CLR 207, 214–5.
In our opinion, the trial judge was right to refuse to stay the trial upon this unreliability basis.
The applicant nevertheless maintained on appeal that the evidence of cross collusion and infection between the complainants provides the context in which the other defects will operate. This will be a trial, the applicant says, where the identification evidence of the complainants will be challenged upon the basis that the evidence of each of them is the product of collusion and infection.
We now turn to the three limbs of the applicant’s challenge to his Honour’s ruling. We note that the argument before the trial judge proceeded upon the basis that it will be a joint trial (although whether it will ultimately be a joint trial is by no means clear).[12]
[12]See [58] below.
The first limb: unfairness in challenging identification evidence of RN
The applicant complains that in order to challenge the identification evidence of RN he would be forced to introduce highly prejudicial evidence.
The argument is based upon some business records maintained by Berry Street. The applicant says these reveal that RN attended on Berry Street in May 2011 seeking compensation and wanting to view his files with a view to pursuing litigation against Berry Street. There are a series of file notes in relation to contact involving RN, RN’s sister YN, and Berry Street. The high point of the applicant’s case in this respect is a note which purportedly records a telephone conversation between YN and an employee at Berry Street on 28 June 2011. The employee author notes:
[P]hone call from [YN]. [RN] made his statement to Detective Pascoe of the Diamond Creek SOCAU unit yesterday. They have identified the alleged perpetrator from an existing police database. [YN] does not know which database. [YN] reports that [RN] is pleased to have made his statement and pleased that the alleged perpetrator has been readily located.
We understand the applicant’s complaint to be as follows:
•the defence will be that the evidence of RN is the product of collusion, contamination and suggestion;
•the defence will involve exploring with RN (and other witnesses) the circumstances in which he came to identify the applicant;
•in order to properly challenge RN’s identification of the applicant, and advance his thesis of collusion and contamination, the applicant’s counsel will need to put to RN (and other witnesses) that the applicant was suggested by police as someone who might have committed the offences, by reference to him being recorded on a police ‘sex offender database’; and
•the exposure to the jury of the fact that he was on a ‘sex offender database’ and the fact that the police were suggesting him as a possible offender irretrievably prejudices the fairness of his trial.[13]
[13]The applicant’s trial counsel also suggested that the conduct of the police constituted police misfeasance or misconduct, which in turn rendered the prosecution an abuse of process. This was not pressed on the appeal before this Court. It received no attention. There is no evidence, or adequate evidence, to support such an allegation.
The applicant contends that his Honour erred by not accepting this argument.
There are several reasons why this limb must fail.
Speculative evidential foundation
First, the applicant’s argument assumes that the evidence will reveal that RN learned of the applicant’s identity when told by Detective Pascoe that the applicant was recorded on a police ‘sex offender database’. On the present state of the evidence, this is mere speculation.
The note itself is ambiguous. It is not clear to whom it was communicated that the applicant had been identified on a police database. There is presently no direct evidence, in any form, from the Berry Street author of this note, from RN’s sister YN, or from Detective Pascoe. RN was cross-examined on the tendency evidence voir dire but was not cross-examined in relation to this issue.
RN has also provided a supplementary statement (after he completed his evidence on the tendency evidence voir dire) in which he explained how he came to name and identify the applicant as the perpetrator. The effect of his statement is that he always knew the surname of the applicant and that he ascertained his first name from the internet. He identified the applicant as the offender to Detective Senior Constable Brad Pascoe, not the other way around. Thus RN directly contradicts the inference sought to be drawn by the applicant from the telephone call note. RN has never been challenged by way of cross-examination on this statement.
The point is that the state of the evidence at best (from the applicant’s point of view) is uncertain. The trial judge was being invited to stay a prosecution on a speculative evidential basis. His Honour was correct not to do so.
Forensic choice for defence
Second, even assuming that the evidence ultimately supports the inference that the police told RN that the applicant was recorded on a sexual offender database, any decision to pursue this line of attack remains a forensic choice. If the applicant pursues it, he does so for a perceived advantage but with knowledge of the perils involved.
In a criminal trial the defence is often confronted with difficult forensic challenges of this kind. There is nothing remarkable about the defence electing, for sound tactical reasons, to introduce into a trial prejudicial evidence of other wrongdoing or alleged wrongdoing. For example, the pursuit of a defence of collusion in relation to a multiple complainant indictment commonly raises this issue. In the absence of cross-admissibility as between the complainants, the defence is often faced with a choice: to seek severance and tackle each complainant in isolation (often with the defence being no more than a bare denial), or to pursue a defence of collusion where the one jury will hear all the allegations from multiple complainants.[14] Likewise, sometimes it is inevitable that an accused’s criminal history will emerge, even including convictions which are highly prejudicial.[15]
[14]For a recent example see Davis (a Pseudonym) v The Queen [2016] VSCA 272 [138]–[141].
[15]Dupas v The Queen (2010) 241 CLR 237.
The logic of the applicant’s argument is that there should be a permanent stay irrespective of the cogency of the complainant’s identification evidence and even where there is other compelling evidence of identification. This is because, on the applicant’s case, he does not need to accept the prosecution evidence and is entitled to pursue the defence of collusion, infection and suggestion against the complainants. It is the pursuit of this defence which will expose this prejudicial evidence to the jury, which is said to justify the stay. Presumably the applicant’s position would not change even if the prosecution could produce irrefutable evidence of guilt. For obvious reasons, there are problems with the law countenancing such a consequence. The law should also be slow to permit a permanent stay where the trial is said to be rendered unfair through the forensic decisions of the defence.
The point is exposed by the facts of this case. The complainants give evidence in their police statements that the offender occupied an apparently undefined role at Sutherland Homes, resided in a caravan and had a close relationship with Superintendent Richard Brodie. An additional witness (Gwendoline Barratt) will give evidence that the applicant did not have a specific role, was very close to Richard Brodie, and lived in Brodie’s caravan. Despite this compelling supporting identification evidence, the applicant says the trial should be stayed because of his forensic choice to challenge RN’s identification in a particular way.
There are also avenues available to the applicant to pursue issues of collusion, contamination and suggestion with RN without necessarily opening up the police suggestion issue. These were explored on the voir dire.[16] They are not merely theoretical opportunities.
Availability of judicial direction
[16]See [19] above.
Third, one of the reasons that the introduction into the trial of prejudicial material of this kind does not ordinarily justify the stay of a trial is that judicial directions can be given to the jury to guard against misuse of the evidence. The law proceeds upon the assumption that the jury will act on the evidence and in accordance with the directions of the judge.[17] If judicial directions can guard against the misuse of highly prejudicial pre-trial publicity, prior convictions, or other evidence of wrongdoing[18], they can sufficiently relieve against the unfair consequences of it being revealed that the police had suggested to RN that the applicant may be the offender.
Managing the evidence
[17]Dupas v The Queen (2010) 241 CLR 237, 247–8 [25]–[29].
[18]Ibid.
Fourth, as senior counsel for the respondent argued on the appeal, there remain possible ways in which the circumstances of the police suggestion to RN might be sanitised, or adduced in a controlled manner, so as to mitigate against any unfairness. This can be achieved by agreement between the parties, or failing that, by a ruling of the trial judge. Given that the evidence is not yet known with any degree of certainty, we are far from satisfied that it will not be possible to manage the introduction of this evidence in such a way (with appropriate judicial instruction) so as to prevent an unfair trial.
The second limb: unfairness in challenging identification evidence of BD
The applicant says he is presented with a similar dilemma in relation to BD, which also gives rise to incurable unfairness. He says the prejudice is greater in the case of the BD charges.
BD made his police statement in July 2012, a few months after the Sutherland Homes reunion (April 2012). According to BD’s police statement, about six years before BD made his police statement, a police woman contacted him by telephone to see whether he knew the applicant. The police woman informed him that a boy (‘ZM’) was accusing the applicant of committing rape. BD knew ZM from the home. BD told the police woman that the applicant had sexually abused him as well and she asked him if he would like to press charges. BD advised her that he was not ready at that time to make a statement as he was going through a relationship break up.
BD gave evidence about this phone call on the tendency evidence voir dire before the trial judge. He confirmed what he said in his statement perhaps with one qualification. It may be that the police officer did not specifically say that ZM was alleging rape against the applicant. BD may have inferred this because that is what the applicant had done to him. This was the first time he told anyone about the sexual abuse. The next time BD told anyone about the sexual abuse, and the first time he disclosed any details, was when he made his police statement in July 2012.
No file note of this telephone conversation between BD and the police woman has ever been located.
We understand the applicant’s complaint to be as follows:
•the defence will be that the evidence of BD is the product of collusion and recent invention. More specifically, BD fabricated these allegations after the Sutherland Homes reunion in April 2012 in order to pursue compensation. At that reunion he was told by RN and others about the possibility of obtaining compensation;
•once that recent invention line of attack is pursued, the prosecution is likely to be permitted to meet it with the evidence of BD concerning his first complaint (of being sexually abused by the applicant) to the police woman some six years beforehand;
•this will reveal that the applicant’s name was suggested to him by the police woman, by reference to the applicant being under investigation for sexual offences against another boy;
•in any event, in order to challenge BD’s identification the defence will need to put to BD that the applicant’s name was suggested to him by reference to another police investigation;
•the information that the applicant was under police investigation for sexual offences against another boy is so prejudicial as to necessarily render the trial unfair; and
•the ‘missing’ note about the police phone call also means that it is difficult to refute the possibility that BD complained to the police woman.
There is more force in this complaint than there is with respect to the equivalent complaint concerning RN. In the case of BD there is direct evidence that he was told by police that the applicant was the subject of an allegation of sexual abuse by another boy. With RN, this remains a matter of speculation. Further, the applicant can pursue issues of collusion and contamination with RN without necessarily opening up the police suggestion issue. That is more problematic in the case of BD given that his first complaint to the police woman six years before his police statement is obviously relevant to rebutting a claim of collusion and recent invention conceived at the reunion in April 2012.
That said, there is no suggestion in BD’s evidence of the applicant being on a sexual offender database. There is no suggestion that he has been convicted. The evidence that the applicant was under investigation in relation to an allegation of sexual abuse by another boy would also be introduced into a joint trial where multiple boys are alleging sexual abuse against the applicant. It will be a trial in which the jury will already be exposed to allegations from several boys and where the jury will be guided by judicial instruction on the misuse of other allegations of wrongdoing. The introduction of an allegation from another boy would be less potent — and more easily managed to avoid misuse — than if it were being introduced into a single complainant trial.
In any event, for similar reasons to those which we have given in relation to the same point concerning police suggestion to RN, we would conclude that the predicament which the applicant faces in relation to BD does not necessarily result in an unfair trial.
Whether the applicant pursues this line of attack against BD is also a difficult, but by no means unique, forensic decision for the defence to make.
In our opinion, if the applicant chooses to open up the issue on joint trial, there are also ways of controlling the evidence in relation to what BD was told concerning the ZM investigation so as to reduce the prejudice. Just how this can be done will be informed by what is ultimately in issue.
In our opinion, any unfairness will also be adequately mitigated through judicial instruction.
As to the ‘missing’ telephone call note, it is not known whether it was ever in existence. It therefore cannot be said it is has been lost or destroyed. Further, any disadvantage caused by reason of the absence of a note does not stem from historical delay between the events in question and the bringing of the matter to trial. Next, whether there is a disadvantage at all will also depend upon what is in issue. That is not yet known. If the defence take no issue with the fact that the complaint was made, or its substance, but instead only seek to impugn BD’s identification upon the basis that its reliability was tainted by police suggestion, then there will be no apparent disadvantage flowing from the absence of a note. In any event, it will be open to the trial judge to fashion an appropriate direction to minimise or guard against any disadvantage not readily apparent to the jury in relation to this issue. In our opinion, the absence of the note does not greatly assist the applicant.
In our view, it was well open to the trial judge to reject this as a basis for staying the trial.
There is one final point on this issue. The applicant’s contention in relation to BD also largely rests upon the proposition that he has no choice but to allege collusion and recent invention against BD (commencing at the April 2012 reunion). If collusion is not pursued then the risk of the conversation with the police woman 6 years earlier about ZM emerging is diminished. The applicant has in fact reserved his position on the question of severance — that is, whether he would seek a separate trial in relation to each of the three complainants.[19] It must also follow that the applicant has reserved his position on whether or not collusion will be raised.
[19]When asked by the trial judge whether the defence would make an application for severance in the event that he ruled against the cross-admissibility of the tendency evidence, trial defence counsel advised ‘Well, Your honour that would come to a decision that counsel has to make, a forensic decision…’.
We therefore think it is going too far to assert, as the applicant did in this Court, that it is a ‘forensic necessity’ to challenge the identification by the complainants on the basis of collusion and infection between them. That might be so in a joint trial, but not in a separate trial. As matters stand we do not know if this will be a joint trial or three separate trials. If we thought that the applicant could not possibly receive a fair joint trial, a question would arise as to whether the prosecution should be stayed, given that he might be able to receive a fair separate trial. As we are unpersuaded that he is unable to receive a fair joint trial, we do not need to further consider this issue.
Combining limbs one and two
The applicant then says that the risk of an unfair trial is amplified by the fact that the jury will hear that suggestions were made by police, on two separate occasions to two complainants (ie RN and BD). It is their combination which gives rise to the likelihood of dangerous speculation by the jury.
It may be accepted that the risk of misuse increases. But it still does not mean that the risk is unable to be sufficiently mitigated to avoid an unfair trial. We think it can be.
The third limb: forensic disadvantages caused by delay of 40 years
The applicant also points to the delay of approximately 40 years in the prosecution of the offences, and the forensic disadvantages said to be consequent upon that delay. In particular, he relies upon the disadvantages caused by the death of two witnesses; Joyce Uren (who was the cottage mother to the complainants) and Richard Brodie (who was the Superintendent at Sutherland Homes at the relevant time).
It may be accepted that the delay of some 40 years is very long, and that in cases of this kind the fairness of a trial will almost invariably be compromised at least to some degree.[20] It does not follow, however, that the trial will be unacceptably unfair.
[20]Bauer (a Pseudonym) v The Queen (2015) 46 VR 382, 402 [96].
It was said that the deceased witnesses Joyce Uren and Richard Brodie might have given exculpatory evidence, or evidence inconsistent with the complainant’s accounts of the offences committed against them. The applicant contended that these witnesses could not be cross-examined in relation to matters such as whether the applicant was resident at Sutherland Homes at the time of the alleged offences, details concerning the location of caravans and their residents, and the existence of any rules or prohibitions at that time that may have removed or reduced the opportunity for offending of the kind alleged. In this Court the applicant’s counsel emphasised, by way of further example, that the applicant is now unable to explore with them whether the shower block existed (BD alleges some of the offending occurred in a show block).
For a number of reasons, we have concluded that the deaths of the witnesses Joyce Uren and Richard Brodie do not necessarily make the trial unacceptably unfair.
Contextual evidence witnesses only
First, neither Joyce Uren nor Richard Brodie was an eyewitness to the specific events in issue (i.e. the charged episodes). They were never in a position to give direct evidence bearing upon the commission of the offences. Nor are they alibi witnesses or witnesses who might approach that category. Their evidence could be characterised as being of a general contextual nature.
Reading of evidence favourable to applicant
Second, the prosecution has agreed to read into the trial those parts of the witness statements of Joyce Uren and Richard Brodie favourable to the case of the applicant. This includes the evidence of Joyce Uren to the effect that she never received any complaints about the applicant from any of the boys. This will conflict with and undermine the evidence from the complainants HD and RN who say they complained to Joyce Uren. The prosecution is unable to challenge Joyce Uren’s account of never having received a complaint. There is thus no risk of her evidence changing or reducing in its cogency. In our view, the applicant is not in a materially worse position than had Joyce Uren been able to testify in person.
The applicant complains that the introduction of her evidence in this manner will have less impact than had Joyce Uren given evidence in person and been cross-examined. That is merely a question of emphasis. The real point is that the applicant is not deprived of the benefit of the substance of the evidence which is either exculpatory or at least favourable to the applicant.
The applicant’s counsel pointed to the prosecution’s intention to call an additional witness (Gwendoline Barratt) to give evidence to the effect that Joyce Uren had received a sexual complaint from an unidentified boy about the applicant. He contended that the introduction of this evidence would undermine the ameliorating benefit of having Joyce Uren’s evidence read into evidence. There is some force in this contention. However, in apparent recognition of this, senior counsel for the respondent indicated in oral argument before us that the prosecution would not seek to adduce this evidence from Gwendoline Barratt. That concession answers this point.
Lost opportunity not lost evidence
Third, while it is true that the applicant will not have the benefit of cross-examining the witnesses on the various matters identified by his trial counsel, when pressed by this Court on the appeal, the applicant’s counsel was driven to accept that the complaint was really no higher than that the applicant has suffered a lost opportunity to ask these witnesses about these matters. It is a matter of complete speculation as to what these witnesses may have said (or not said). This is not a case where actual or known evidence has been lost.
Information not uniquely within their knowledge
Fourth, the applicant was unable to identify any evidence which only these witnesses were in a position to give. These witnesses are not the only people who might give contextual evidence such as evidence concerning layout and work practices. The point is demonstrated by the very example pressed by the applicant’s counsel in this Court concerning the shower block. It seems to us that anyone who resided or worked at Sutherland Homes would be in a position to give some evidence about the existence, location and layout of the shower block. It also seems to us that some of the matters might be explored with the additional witness, Gwendoline Barratt, who was employed at the home as the inaugural office manager and secretary to Richard Brodie. She has not yet been cross-examined.
The applicant also made a point that there is evidence from which an inference might be drawn that Joyce Uren, Richard Brodie and the applicant may never have been at Sutherland Homes together. If drawn, this inference would conflict with the complainants’ evidence. The applicant complains he cannot explore this with Joyce Uren. Again, there are other witnesses who can give evidence about this issue. Joyce Uren is not uniquely placed to talk to this. Indeed, the additional witness, Gwendoline Barratt, explicitly addresses the topic, stating they were all at Sutherland Homes together. Further, it is unknown what Joyce Uren would say about this if she was available. This is another example of a mere lost opportunity to explore a matter, where the possible answers are unknown.
Mere presumptive prejudice or general forensic prejudice
As matters currently stand, it is speculative to contend, as the applicant does, that he has been so deprived of contextual and surrounding evidence that a fair trial is impossible.
In our opinion it was reasonably open to the trial judge to find the death of these witnesses did not justify a permanent stay.
The applicant relied upon this Court’s decision in R v FLJ[21] where it was found that the death of the accused’s parents resulted in an incurable prejudice. In FLJ, the accused’s parents resided with the accused and the child complainants in the house where the sexual abuse allegedly occurred. The accused slept in a bedroom adjacent to his parents and the children slept in a bungalow in the garden. The missing witnesses belonged to an intimate and small group of persons who were physically proximate to the offending in question, and seemingly uniquely placed to give evidence in relation to the property layout, and the movements and habits of the protagonists. Their evidence had the potential to go well beyond contextual circumstantial evidence. They were in a different category from Joyce Uren and Richard Brodie.
[21](2014) 41 VR 572.
Finally, we are conscious that the applicant at trial relied upon other missing pieces of evidence as a consequence of the passage of time including the missing caravan (without photographs or the actual caravan the capacity to challenge the complainants’ diagrams and recollections of the caravan is compromised), the absence of employment records (without them the capacity to explore when the applicant was employed at Sutherland Homes is compromised) and the absence of any scout attendance records (RN alleges he was abused after Scouts, so this cannot be fully explored).
In our opinion, the unfairness which will be caused to the applicant because of these lost opportunities does not go beyond mere presumptive prejudice or general forensic prejudice. We are certainly unpersuaded that such unfairness cannot be adequately addressed by a detailed and strong forensic disadvantage direction.
Conclusion
We are of the view that the disadvantages relied upon by the applicant — individually or cumulatively — do not amount to a fundamental defect of such a nature that nothing can be done by a trial judge to relieve against their unfair consequences.[22] We are unpersuaded that the forensic disadvantages here result in such an extreme case as to justify a stay.
[22]Dupas v The Queen (2010) 241 CLR 237, 250 [35].
We are also of the opinion, like the trial judge was, that the public interest favours the prosecution of these offences.
None of the offences charged could be described as falling at the lower end of the sexual offence spectrum. They are not minor or trivial. The buggery charge involving BD is particularly grave and would, if proven, result in a lengthy term of imprisonment.
The applicant submits that he suffers a greater degree of unfairness in relation to defending the charges concerning BD than he does in relation to defending the charges concerning RN or HD.[23] His case for a permanent stay on those charges is thus stronger. While we accept this, there is, on the other hand, a stronger public interest that the applicant be prosecuted for the instance of offending against BD (which includes the buggery charge).
[23]See [53] above.
Of course, the applicant will have available to him the remedy of a substantive appeal should he be convicted. This Court can then assess whether the trial has been a fair one. That assessment is best undertaken by reference to the trial as a whole.[24]
[24]Wells (No 2) v The Queen [2010] VSCA 294 [40]
Certification and a question of prematurity
Finally, the learned trial judge refused to certify this ruling upon the basis that the evidence was in a state of flux and the application was premature. The trial judge concluded that in the circumstances the decision was not ‘of sufficient importance to the trial’ to justify it being determined on an interlocutory appeal.
It is apparent from our analysis above, that there is some force in this view. Indeed, both parties on the appeal accepted that the stay application at first instance and the appeal were premature. The evidence on critical issues is obviously incomplete. Had the tendency evidence ruling (and any separate trial ruling) preceded the permanent stay ruling, there would have been greater certainty with respect to the number and make-up of the trial(s), the evidential landscape and the live forensic choices facing the applicant.
In our opinion, the trial judge was correct not to certify the decision.[25]
[25]We would also add in passing that although the trial judge did not explicitly find that his decision was not attended by sufficient doubt to justify it being determined on an interlocutory appeal, we think it would have been open to him to do so.
Nevertheless, at the urging of both parties, and perhaps with some reservation, we decided to deal with the appeal on its merits, upon the basis of the state of the evidence as it existed before the trial judge. This is what we have done.
The application will be dismissed.
Although we have dismissed this application, we make the observation that the nature of the evidence may well materially change during the course of the trial. Were that to occur, the applicant would not be precluded from making a further application for a stay.[26] In that regard, we record the fact that after the hearing the applicant’s legal representatives contacted the Court seeking leave to adduce additional evidence concerning the health of one of the witnesses. We refused to entertain that application. The evidence sought to be relied upon could not have been relied upon if it had been raised at the hearing, unless leave were granted under s 300 of the Criminal Procedure Act 2009, because it was evidence which had not been given in the proceeding to which the proposed interlocutory appeal related. The matter had already been heard and our decision had already been reserved when the communication occurred.
[26]Wells v The Queen [2010] VSCA 100 [26].
As we have explained, the application had proceeded both before the trial judge and before us in a context where the likelihood of material change in the evidence was high. In all the circumstances, if the additional evidence is to be relied upon, that will have to form part of a further application to the trial judge.
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