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Jones (a pseudonym) v The Queen

Jones (a pseudonym) v The Queen

Case [2017] VSCA 111 16 May 2017

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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.…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Jones (a pseudonym) v The Queen

Details

AGLC: Jones (a pseudonym) v The Queen [2017] VSCA 111
Case: [2017] VSCA 111
Decision Date: 16 May 2017

CaseChat Overview and Summary

In the matter of Jones (a pseudonym) v The Queen, the High Court of Australia was called upon to review a decision by the Court of Appeal of the Supreme Court of Victoria. The respondent, the appellant in the original matter, sought a permanent stay of the proceedings on the basis that the complainants had colluded, and the introduction of prejudicial evidence had caused an unacceptable delay in the trial. The Court was also asked to consider whether the original court had erred in refusing to certify the decision for interlocutory appeal.

The central legal issues revolved around whether the appellant had demonstrated that the refusal to grant a stay and to certify for appeal created an unacceptable unfairness. This included assessing whether the risk of collusion was substantiated, the potential for prejudicial evidence to impact the trial, and the effects of delay on the proceedings. The Court was required to balance the rights of the appellant to a fair trial against the state's interest in prosecuting the case.

The Court determined that the application for a stay was premature, as the evidence regarding collusion was both incomplete and conflicting. Furthermore, the Court found that any prejudicial effect from the introduction of evidence could be mitigated by directing the jury appropriately. The Court also considered the limited disadvantage from the death of witnesses resulting from the delay and concluded that these factors did not create the requisite level of unfairness to warrant a permanent stay. Consequently, the application to review the refusal to certify for interlocutory appeal was dismissed.

The Court upheld the decision of the Court of Appeal, affirming that the original court had not erred in its assessment of the case. The application for a permanent stay and the review of the refusal to certify for interlocutory appeal were both refused, leaving the original proceedings intact.

Orders