Lucas Reeves (a pseudonym)[1] v The Queen
[2017] VSCA 343
•22 November 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0221
| LUCAS REEVES (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 pseudonyms in place of the names of the applicant and certain other people.
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| JUDGES: | SANTAMARIA and COGHLAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 October 2017 |
| DATE OF JUDGMENT: | 22 November 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 343 |
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CRIMINAL LAW – Appeal – Interlocutory ruling – Using carriage service to procure person under 16 years of age for sexual activity – Using carriage service to groom person under 16 years of age for sexual activity – Using carriage service to transmit indecent communications to person under 16 years of age – Trial judge refused application to recall prosecution witnesses for cross-examination – Refusal to certify – Leave to review refusal to certify refused – Criminal Procedure Act 2009 ss 295, 296, 297.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Mr S Ginsbourg | Mr J Cain, Solicitor for Public Prosecutions |
SANTAMARIA JA
COGHLAN JA:
Introduction
The applicant is currently facing trial in the County Court at Melbourne. He is charged with:
(a) four counts of using a carriage service to procure a person under 16 years of age for sexual activity (contrary to s 474.26 Criminal Code Act 1995 (Cth) (‘the Code’));
(b) four counts of using a carriage service to groom a person under 16 years of age for sexual activity (contrary to s 474.27(1) of the Code); and
(c) four counts of using a carriage service to transmit indecent communications to a person under 16 years of age (contrary to s 474.27A of the Code).
There are four complainants. The applicant is charged with committing each of the three types of offences against four early teenage girls: SW, PC, TB and RH. As at the date of the present applications, a jury had not yet been empanelled.
On 23 October 2017, the trial judge delivered a ruling in which he refused an application brought by the defence to recall several prosecution witnesses for cross-examination (‘the recall ruling’).
On 24 October 2017, the applicant requested the trial judge to certify under s 295(3) of the Criminal Procedure Act 2009 (Vic) (‘the Act’) that one or other of the preconditions for certification within that subsection had been met in respect of the recall ruling. The trial refused to certify.
The applicant applied to this Court under s 296 of the Act for a review of the trial judge’s refusal to certify. He also gave notice under s 295 of the Act that he sought leave to appeal the recall ruling.
On 26 October 2017, this Court refused the application for a review of the trial judge’s refusal to certify. At the time of making that order, we indicated that we would publish reasons in due course. These are our reasons.
Summary of prosecution opening and defence response
In order to place the current applications in context, it is necessary to extract in full the summary of prosecution opening and the initial defence response.
The summary of prosecution opening dated 1 June 2017 reads, in relevant part, as follows:
The accused is now 22 years old … At the time he commenced offending he was living in Western Australia. In May 2015 the accused travelled to Victoria.
On 28 May 2015, the accused provided personal details to police which included his mobile service with the number [mobile number], and a Facebook Account in the name of ‘[the applicant’s name]’. The accused later communicated with the victims in this case using the mobile number and Facebook Accounts in the name of ‘[the applicant’s name]’ and ‘Alex Mills’.
[SW] (Charges 1 – 3)
The accused first contacted [SW] … when she was 13 years old and living in Western Australia. The accused first made contact with [SW] through Facebook and exchanged messages with her through Facebook Messenger. A few weeks later they exchanged mobile telephone numbers. The accused then sent SMS messages and made voice calls to [SW’s] phone. Later he persuaded her to meet with him.
When they first started communicating, [SW] told the accused she was 13 years old.
Within the first few months of their communications, [SW] told the accused that she had been sexually assaulted and that she didn’t want other people to know about it.
Subsequently, the accused tried to use this information to control [SW] by threatening disclose the sexual assault to other people if she didn’t reply to his messages or stop hanging around with people he didn’t like.
The accused began flirting with [SW] through their phone contact. He told her she was pretty and encouraged her to flirt with him. The accused introduced sexual references into these conversations. He told [SW] that he had seen pictures of her on Facebook that made him want to have sex with her. He asked her to ‘talk dirty’ to him. (Charge 1 – use carriage service to procure a child under 16; Charge 2 – use carriage service to groom a child under 16, alternative to Charge 1; Charge 3 – use carriage service to transmit indecent communication to a child under 16)
In around early 2015, [SW] moved to Heidelberg Victoria. The accused travelled to Victoria and called [SW]. He told her he was staying in a hotel in the city. He persuaded her to meet with him in Heidelberg in the morning. He went with [SW] to her church and stayed for the service and then remained together with her until the afternoon. Whilst together the accused tried to kiss the complainant.
The accused later persuaded [SW] to meet him out the front of her house in Heidelberg. They spoke for about 10 minutes before [SW] became uncomfortable being out of the front of her building that late and went back inside.
Subsequently the accused remained in contact with [SW] through mobile phone until as late as 16 October 2015, but they did not meet each other again.
On 10 October 2016, [SW] identified the accused on a police photo board.
[PC] (Charges 4 – 6)
The accused first contacted [PC] … on 16 June 2015, when [PC] was 13 years old. The accused first made contact with [PC] through Facebook and exchanged messages with her through Facebook Messenger using the [the applicant’s name] account. They later exchanged mobile telephone numbers. The accused then send SMS messages and made voice calls to [PC’s] phone.
On 16 June 2015, the accused sent Facebook message to [PC] that read, ‘… Hey no offence but did u get like really hurt by a guy a while ago,’ and ‘apparently he took ur v and u were hell young.’
During this Facebook conversation the accused also sent a message to [PC] that read, ‘Apparently after it hapnd uve let heaps of guys root u (tbh I dnt think u seem like that) n he was like an adult who raped u n was ur cousin.’ (Charge 6 – use carriage service to transmit indecent communication to a child under 16)
[PC] appeared to agree that she had been sexually assaulted and continually asked the accused who had disclosed this information to him. In response the accused asked [PC] for her phone number which she later gave to him.
[PC] subsequently reported her contact with the accused to her aunt [person named], and her mother [person named]. [PC’s aunt] reported the contact between [PC] and the accused to [PC’s] father, [person named].
[PC’s aunt, mother and father] each communicated with the accused through either Facebook or mobile phone. During these communications, [PC’s aunt] told the accused that [PC] was 13 years old.
The accused continued to send messages to [PC] and call her on her mobile phone. He contacted her whilst she was at school and asked to meet her in the bathroom. He also asked to meet her so that they could hang out and go shopping. [PC] refused to meet him. (Charge 4 – use carriage service to procure a child under 16; Charge 5 – use carriage service to groom a child under 16, alternative to Charge 4)
During the accused’s communication with [PC] he told her that he was a law student and that they needed to report her sexual assault to police.
[TB] (Charges 7 – 9)
The accused first contacted [TB] … on 7 September 2015, when she was 13 years old. The accused first contacted the complainant through Facebook and exchanged messages with her through Facebook Messenger using the [the applicant’s name] account. They subsequently exchanged mobile phone numbers and spoke to one another over the phone.
Between 7 and 15 September 2015 the accused sent several messages to [TB] asking if she was OK. He implied that he had known she had been mistreated by a male and spoke to her sympathetically.
On 20 September 2015 the accused resumed contact with [TB] through Facebook Messenger. During the conversation [TB] told the accused that she was 13 and still a virgin.
[TB] also disclosed during this conversation that she had a boyfriend. The accused responded by sending message which read ‘Ur bfs lucky / I bet u would do anything to keep him … Even if he wanted to go all the way aww … Do u want to let him do u … would u give him ur v.’
The accused then asked [TB] if a guy had ever tried to make her ‘do stuff’ and what was the worst thing she had ever done in life. [TB] replied that she had ‘got fingered’ when she was 12 by a guy who was 17.
The accused asked [TB] if it was her first time or whether she had already fingered herself before that. Her also asked her if it happened again. He talked [TB] into revealing who had done it to her and said that he would go to ‘juvi for at least six months.’
The accused told [TB] ‘Lol Im so reporting our msgs to police.’ [TB] asked him not to tell anybody. The accused reassured her he wouldn’t and then said ‘He would of fingered u rough … U must have been wet / N Moaning’.
The accused continued to threaten to report what [TB] had told him to police. [TB] pleaded with him not to. The accused asked [TB] to ‘Suk my dick’ and to give him a ‘blow job’ in exchange for him not telling police about the conversation. [TB] refused. The accused continued the conversation with [TB], making frequent sexual and offensive references.
During this conversation the accused asked [TB] to call him on [the applicant’s mobile number].
The accused obtained the [TB] mobile number and stored it in his mobile phone using the contact name ‘Rezzy Slut.’ He then began calling the complainant repeatedly over the following weeks. He asked [TB] to send him sexual photographs and videos of herself and offered to send her naked photos of himself. He told her he wanted to ‘fuck her hard.’ (Charge 7 – use carriage service to procure a child under 16; Charge 8 – use carriage service to groom a child under 16, alternative to Charge 7; Charge 9 – use carriage service to transmit indecent communication to a child under 16)
During this period [TB] showed a friend, [person named], messages from the accused that were consistent with the accused demanding that [TB] engage in sexual activity with the accused in exchange for him desisting from reporting her to the police and her school. The accused then called [TB] whilst she was with [TB’s friend]. [TB’s friend] saw [TB] was distressed and heard her trying to persuade the accused to stop threatening her. [TB’s friend] spoke to the accused and hung up the phone. The accused called back and [TB] spoke to him using speakerphone so that [TB’s friend ]could hear the conversation.
The accused continued to contact [TB] through Facebook Messenger until 26 September 2015, and by dialing and SMSing her mobile phone until 18 October 2015.
[RH]
The accused first contacted [RH] … on 17 June 2015, when [RH] was 13 years old. The accused first made contact with [PC] [sic] through Facebook and exchanged messages with her through Facebook Messenger using the Alex Mills account.
On 17 June 2015, the accused sent messages to [RH] in which he pretended that he had found out that she had been the victim of a sexual assault. [RH] asked the accused who had told him this. The accused persuaded [RH] to give him her mobile phone number by promising that he would arrange for the person who had provided him information about her to call her on the number she provided.
That evening the accused used to his mobile phone to call [RH]. He identified himself as Jack and questioned her about the sexual assault.
Shortly after the phone call ended, the accused began sending SMSs to [RH] in which he pretended that Jack was a friend of his who had used his phone to call her.
The accused and [RH] continued to exchange numerous SMS messages over the next two hours. The messages sent by the accused included –
‘Apparently alex was gonna not mgs ur friends list if u agreed to let him fuk u once … Or a bj he said
Would u have let him root u if he kept shut n didn’t msg ur friends
OMG wft so he rapes ur pussy n u let him omg ur slut’
During these messages the accused repeatedly threatened to contact [RH’s] Facebook friends and provide them with information about her including a recording of her phone conversation with ‘Jack.’
The accused continued to contact [RH] through Facebook and mobile phone over the next three days. He continued to taunt [RH] with offensive sexual references and threatened to disseminate person information about her to her friends. He suggested that if [RH] engaged in sexual activity with him he would refrain from spreading information about her. (Charge 10 – use carriage service to procure a child under 16; Charge 11 – use carriage service to groom a child under 16, alternative to Charge 10; Charge 12 – use carriage service to transmit indecent communication to a child under 16).
During this period of contact with [RH], the accused travelled by plane to Queensland on 18 October 2015 and returned by plane to Melbourne on 21 October 2015.
The prosecution’s notice of pre-trial admissions dated 1 June 2017 reads as follows:
1. That the accused was the subscriber to the mobile service 0431 621 517.
2.That the accused was the subscriber to the Facebook Accounts ‘[Lucas Reeves]’ and ‘Alex Mills.’
3.On 21 October 2017, the accused was found in possession a Huawei Y360-U03 model mobile phone with IMEI numbers 8668 3902 2722 866 and 8668 3902 2773 067, and containing a SIM card associated with the service number 0431 621 517.
4.The accuracy of the analysis reports for the Huawei phone produced by Alex Robertson and Paul Imbriotis.
5.The accuracy of the edited analysis data (SMS messages and voice calls) for the iPhone 5s IMEI 358689059112332 provided by [RH] to police on 3 November 2015.
6.The accuracy of the screen shots taken by police of mobile phones belonging to [TB], [PC], [PC’s aunt], [PC’s mother], [PC’s father], and [RH].
7. Continuity of exhibits.
8.Admissibility of the relevant parts of the record of interview set out in the Summary of Prosecution Opening.
9.That the photograph identified by [SW] on 10 October 2016 was a photograph of the accused.
On 23 June 2017, the defence filed its response to the summary of prosecution opening. The defence response was prepared by Mr Tony Lavery, who was counsel for the applicant at that time. It reads as follows:
Re: [SW]
The Accused asserts that he believed that the complainant was over 16 years of age. He disputes that his contact with this complainant could constitute procuring, or grooming. He disputes that his communication with her could constitute indecent communication.
Re: [PC]
The Accused asserts that he believed that the complainant was over 16 years of age. He disputes that his contact with the complainant could constitute procuring or grooming. He disputes that his communication with her could constitute indecent communication. The Accused asserts that he never had any intention to meet the complainant.
Re: [TB]
The Accused assets that he believed that the complainant was over 16 years of age. He disputes that his contact with this complainant could constitute procuring or grooming. He disputes that his communication with her could constitute indecent communication. The Accused asserts that he never had any intention to meet the complainant.
Re: [RH]
The Accused asserts that he believed that the complainant was over 16 years of age. He disputes that his contact with the complainant could constitute procuring or grooming. He disputes that his communication with her could constitute indecent communication. The Accused asserts that he never had any intention to meet the complainant. He denies using the names of Alex or Jack.
In the same document, the defence responded to the notice of pre-trial admissions[2] as follows:
[2]See [9] above.
Item 1. Admitted
Item 2. Not admitted
Item 3. Admitted
Item 4. Not admitted
Item 5. Not admitted
Item 6. Admitted
Item 7. Not admitted
Item 8. Not admitted
Item 9. Admitted
VARE interviews and cross-examination of each complainant
Between 3 November 2015 and 23 August 2016, police conducted a VARE[3] interview with each complainant. Between 29 June 2016 and 24 July 2017, each complainant gave evidence in a special hearing. On each occasion, the complainant was cross-examined by Mr Lavery.
[3]Visual and Audio Recorded Evidence. See Criminal Procedure Act 2009 ss 366 and 367.
The applicant subsequently withdrew instructions to his solicitors and counsel. Since then, he has appeared in person before the trial judge and this Court.
Previous application for leave to appeal against interlocutory decisions and review of refusal to certify
On 26 July 2017, the trial judge delivered a ruling in which he rejected an application brought by the defence to exclude all evidence obtained from the applicant’s mobile phone, which police seized on the day of the applicant’s arrest. The applicant had contended that his mobile phone had been seized unlawfully.
On 28 July 2017, the trial judge delivered a ruling which permitted tendency evidence to be led in the prosecution case. The effect of that ruling was that allegations made in the case involving a particular complainant became cross-admissible in the cases involving the other complainants.
Subsequently, the applicant requested the trial judge to certify under s 295(3) of the Act that one or other of the preconditions for certification within that subsection had been met in respect of one or other or both of the rulings delivered on 26 July 2017 and 28 July 2017. The trial judge refused to certify on that occasion too.
On 9 August 2017, the applicant filed an application for a review of the refusal to certify and an application for leave to appeal against the two interlocutory rulings delivered by the trial judge. This Court heard the applications on 6 October 2017.
On 13 October 2017, this Court refused both applications and published written reasons.[4]
[4]Reeves (a pseudonym) v The Queen [2017] VSCA 291 (Santamaria and Kaye JJA and T Forrest AJA).
The amended defence response
On 18 September 2017, the applicant issued a notice in accordance with s 184(a) of the Act to the Registrar of the County Court stating that he would ‘depart substantially from a number of matters’ set out in his defence response.
On 10 October 2017, the applicant provided the trial judge with an amended defence response to the summary of prosecution opening and to the notice of pre-trial admissions. The defence response to the summary of prosecution opening reads as follows:
Charges 1–3 [SW]
1.The accused takes issue with the alleged circumstances in which electronic communication between the complainant and himself first occurred, asserting that such communication was initiated not by him, but by the complainant.
2.The accused takes issue with the alleged circumstances in which it is alleged that the complainant and himself had face to face contact in Victoria, denying that there was ever any persuasion on his part for the complainant to meet with him.
3.The accused takes issue with the alleged disclosure by the complainant, during her initial contact with him, of her age.
4.The accused takes issue with the alleged circumstances in which use of sexual assault information disclosed to him by the complainant was used by him, denying:
(a)that he used the information to control her;
(b)that he ever threatened to disclose or report the information because she didn’t reply to his messages;
(c)that he ever threatened to disclose or report the information to stop her hanging around with people he didn’t like; or
(d)that he ever used the information to manipulate, coerce or otherwise apply pressure to the complainant with the intent of engaging her in sexual activity with him.
5.The accused takes further issue with the alleged circumstances of the electronic communication between himself and the complainant, denying:
(a)that he introduced sexual references into any of those communications;
(b)that he stated he had seen pictures of her which made him want to have sex with her; or
(c)that he pressured her to ‘talk dirty’ to him.
6.The accused takes issue with the events alleged to have occurred between the complainant and himself upon his arrival in Victoria, denying:
(a)that he told the complainant he was staying in a hotel in the city; or
(b)that he met the complainant the morning after he arrived.
7.The accused takes issue with the intimate act allegedly sought to be carried out by him with the complainant ‘after church’, denying that he has ever attempted to kiss the complainant.
8.The accused takes issue with the alleged face to face contact between the complainant and himself in Victoria, denying that there were two meetings.
9.The accused takes issue with the element of intent concerning the procuring and grooming charges, denying that he had any intention to engage the complainant in sexual activity with him in any of his electronic communication with her.
10.The accused disputes that any of his electronic communication with the complainant could constitute indecent communication.
11.The accused asserts that he believed that the complainant was over 16 years of age.
Charges 4–6 [PC]
12.The accused disputes that any of his electronic communication with the complainant could constitute indecent communication.
13.The accused takes issue with the alleged fact that he asked her to meet him in the bathroom, denying that this ever occurred and that he ever asked the complainant to meet with him.
14.The accused asserts that he never had any intention to meet with the complainant.
15.The accused asserts that he believed that the complainant was over 16 years of age.
16.The accused takes issue with the element of intent concerning the procuring and grooming charges, denying he had any intention to engage the complainant in sexual activity with him in any of his electronic communication with her.
Charges 7–9 [TB]
17.The accused takes issue with the element of intent concerning the procuring and grooming charges, denying he had any intention to engage the complainant in sexual activity with him in any of his electronic communication with her.
18.The accused asserts that he believed that the complainant was over 16 years of age.
19.The accused disputes that any of his electronic communication with the complainant could constitute indecent communication.
20.The accused disputes the circumstances in which the complainant disposed having been ‘fingered’, denying that he ‘talked the complainant’ into revealing who had ‘fingered’ her.
21.The accused denies that he ever asked the complainant to take sexual pictures or videos of herself, or to send such pictures of or videos of herself and that he offered to send pictures to the her [sic].
22.The accused asserts that he never had any intention to meet with the complainant.
Charges 10–12 [RH]
23.The accused denies that he ever communicated with this complainant electronically, whether via:
(a)use of the Facebook account of Alex Mills;
(b)use of the names Alex or Jack; or
(c)via mobile phone.
24.The accused denies ever having had an intention to meet with the complainant.
25.The accused denies ever having had any intention to engage this complainant in sexual activity with him.
The amended defence response to the notice of pre-trial admissions reads as follows:
1.The accused admits he was the subscriber to the mobile service 0431 621 517.
2.The accused admits he was the subscriber to the Facebook Account ‘[name of applicant], but does not admit he was the subscriber to the Facebook Account ‘Alex Mills’.
3.The accused admits that he was found in possession of a Huawei Y360-U03 model mobile phone with IMEI numbers 8668 3902 2722 866 and 8668 3902 2773 067, and containing a SIM card associated with the service number 0431 621 517.
4.The accused does not admit the accuracy of the analysis reports for the Huawei phone produced by Alex Robertson and Paul Imbriotis.
5.The accused does not admit the accuracy of the edited analysis data (SMS messages and voice calls) for the iPhone 5s IMEI 3586 8905 9112 332 provided by [RH] to police on 3 November 2015.
6.The accused does not admit the accuracy of the screen shots taken by police of mobile phones belonging to [TB], [PC], [PC’s mother], [PC’s aunt], [PC’s father] and [RH].
7.The accused does not admit continuity of the exhibits.
8.The accused does not admit the admissibility of the relevant parts of the record of interview set out in the Summary of Prosecution Opening.
9.The accused admits that the photograph identified by [SW] on 10 October 2016 was a photograph of him.
The application to recall prosecution witnesses
On 10 October 2017, the applicant provided the trial judge with a written outline of submissions in support of his application ‘for the recall of certain prosecution witnesses, so as to enable those witnesses to be further cross-examined’. The applicant sought to recall each of the complainants and another female witness aged 17 (‘JS’).[5]
[5]JS was initially a complainant who had given evidence in the proceedings. The prosecution later withdrew the charges against the applicant that were relevant to JS. After the hearing of the application to recall the witnesses, the prosecutor informed the trial judge that ‘[n]ot all of the evidence of [JS] is going to the jury, only a very small part of it’.
In his written outline, the applicant said that the application was designed to prevent what would constitute a breach of the rule in Browne v Dunn.[6] He contended that there are ‘aspects of substance’ to his case that were not put to the witnesses adequately or at all. He said that these aspects, which included ‘relevant facts, propositions and evidence’, are ‘significant and material to the resolution of the issues in dispute’. Each of the aspects, said the applicant, concerns matters in respect of which the applicant ‘will seek to call evidence challenging the witnesses [sic] version of facts or attacking their credibility … including inviting the jury during the defence address to reject their evidence’.
[6](1893) 6 R 67.
The applicant said that, in relation to his application to recall the complainants, there were ‘facts in dispute’, which were not contained in the initial defence response prepared by counsel on his instructions, but which are set out in the amended defence response. He said that these facts in dispute ‘do not substantially depart from the scope of the original documents filed by the defence and which could reasonably have been expected to be put (or put more adequately) to the witnesses.’ He also said that there were matters of which the applicant has only recently become aware ‘as a result of new evidence’. Finally, he said that there were ‘issues in dispute’ raised in the amended defence response that depart substantially from those in the initial defence response, but ‘had they been in dispute at the time of cross-examination, would have reasonably been expected to be put to the witnesses and which should now be put’.
The applicant contended that the refusal of the application would cause him ‘real and incurable prejudice’. He said that it would deprive him of any benefit arising out of the witnesses’ response to cross-examination and that it might be inferred that ‘those aspects of the defence case not put to the witness [sic] were recently invented or that the defence accept the evidence-in-chief of those witnesses’.
On 19 October 2017, in his oral submissions to the trial judge, the applicant contended that matters such as the young age of the complainants and the likely trauma and inconvenience of their giving evidence neither surmounted the common law principles in favour of recalling witnesses nor stood in the way of the defence putting its case ‘fully and fairly’. He argued that that it was in the interests of the prosecution that the witnesses be recalled ‘to prevent the situation where they have to be recalled later’ and to prevent ‘an inevitable breach’ of the rule in Browne v Dunn. He also said that certain matters, which ‘go to the heart of the case of each party’, were not put to the witnesses earlier when Mr Lavery had the opportunity to do so.
The recall ruling
On 23 October 2017, the trial judge delivered the recall ruling. He said that the test to be applied is ‘whether the interests of justice require that leave be granted or refused’.[7] He described the background to the application before him as follows:
The accused is charged with four counts of using a carriage service to procure a person under 16 years of age for sexual activity, four counts of using a carriage service to groom a person under 16 years of age for sexual activity and four counts of using a carriage service to transmit indecent communications to a person under 16 years of age.
A defence response to summary of prosecution opening prepared by Mr Lavery of counsel was filed on or about 23 June 2017. Mr Lavery acted on behalf of the accused when the evidence of all the complainants and [JS] was pre-recorded on 26, 27, 29 and 30 June 2017, 24 July 2017 and 2 August 2017. Following the pre-recording of evidence the accused terminated the services of his barrister and solicitors.
The accused filed a written notice dated 18 September 2017 indicating his intention to substantially depart from a number of matters set out in the 23 June 2017 defence response. The accused has filed a defence response to the summary of prosecution opening dated 10 October 2017. There was no objection by the prosecution to the amended defence response and the prosecution is in a position to proceed with this trial.
[7]The trial judge cited Brown v Petranker (1991) 22 NSWLR 717, 728 (Clarke JA, with whom Handley JA and Waddell AJA agreed).
The trial judge set out the grounds of the application brought by the defence as follows:
(1), there are new disputed facts raised in the recent defence response which have not been put to the witnesses in cross-examination. The defence have foreshadowed calling evidence on these matters and the defence are concerned about a possible breach of the rule in Browne v Dunn. (2), the accused submits the defence is deprived of any benefit that might have been derived from the witness’ response to cross-examination on these matters and; (3), that the failure to recall these witnesses would hinder the defence presentation of its case and significantly increase the risk of complications, including unfairness, at trial.
The trial judge continued:
The prosecution accepts that there are new issues or disputed facts raised in the recent defence response and some of these matters were not put to witnesses in the cross-examination undertaken by Mr Lavery. The defence refer to paragraphs 1, 2, 3, 4, 5, 6 and in particular paragraphs 7, 13, 20 and 21 as new and significant matters.
The prosecution, whilst accepting there have been changes in the defence response, submit there is no change in the defence position with respect to [RH]. The prosecution accept that in respect of the other three complainants there are a number of positive facts asserted and new assertions of facts in dispute that were not the subject of cross-examination by Mr Lavery.
In respect of [JS] the prosecution only propose leading a small portion of her evidence to the effect that the accused told her that he was in contact with [SW] and [JS] complained to the accused that [SW] had taken her mobile phone. This was not the subject of cross-examination.
Whilst it is acknowledged that the accused will be in breach of the rule in Brown v Dunn [sic] if he is not permitted to further cross-examine the witness and he adduces evidence in accordance with the recent defence response, it is submitted on behalf of the prosecution that any potential unfairness or prejudice is to the prosecution.
It is submitted that the application is premature and speculative. The accused has provided a no-comment record of interview and it is unclear what evidence, if any, will ultimately be before the jury.
In these circumstances it is submitted by the prosecution that s 46 of the Evidence Act may be relevant. Section 46 provides:
‘46(1) The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined if the evidence concerned has been admitted and-(a) it contradicts evidence about the matter given by the witness in examination-in-chief, or (b) the witness could have given evidence about the matter in examination-in-chief. (2) A reference in this section to a matter raised by evidence adduced by another part includes a reference to an inference drawn from, or that the party intends to draw from, that evidence.’
The prosecutor conceded that he would be loathe [sic] to make an application under s 46 in the circumstances of this case.
The second principal submission of the prosecution is that the interests of justice do not favour the recall of these witnesses having regard to their young age, the subject matter of their evidence and the likely trauma and inconvenience that would result from recalling the witnesses.
For the purposes of this ruling I have assumed any further cross-examination will be conducted by a legal practitioner and not by the accused.
I am not satisfied that the interests of justice favour the recall of any of the witnesses nominated by the accused. I have arrived at this conclusion for these reasons:
There is a possibility that the rule in Brown v Dunn may not be complied with. This will depend upon the course adopted by the defence and the evidence that may be adduced by the defence. Even if there is ultimately a failure to comply with the rule the potential unfairness or prejudice as a result of the breach of the rule is to the prosecution, not the defence.
It may well be that the rule in Brown v Dunn is breached and the prosecution do not seek to recall any witnesses pursuant to s 46 of the Evidence Act. Consideration would then need to be given to the submissions that can be made by either party to the jury and the appropriate jury directions on these issues. It is premature to attempt to deal with these matters at this stage.
The defence have not persuaded me of the benefit that the defence might derive from any of the witnesses’ responses to cross-examination concerning the matters raised in the recent defence response. Even if I accept there may have been some benefit to some benefit to the defence, this is only one relevant consideration.
I am also not satisfied that the failure to allow the recall of any of these witnesses hinders the presentation of the defence case, nor does it significantly increase the risk of complications at trial.
It is a very relevant factor that all of the witnesses are young persons. [SW] is 17 years of age … [PC] is 15 years of age … [TB] is 15 years of age … [RH] is 15 years of age … and [JS] is 17 years of age …
It was a major logistical exercise organising the pre-recording of their evidence. For example, there was a witness in Western Australia and a witness in country Victoria. In addition [RH] has an intellectual disability.
I accept there is an understandable reluctance on the part of these witnesses to give evidence. Any further cross-examination would be principally directed to private or sexual matters. These are sensitive issues. I accept that recalling these witnesses does involve great trauma and inconvenience to the witnesses.
The defence have referred to many authorities on the issue of recalling witnesses. This is a particularly unusual case in that the accused was legally represented and through his counsel all witnesses were extensively cross-examined. Their evidence was pre-recorded by agreement.
Following the termination of the services of the accused’s barrister and solicitors the accused has amended the defence response and made this application to recall the four complainants and the witness [JS], all of whom are young females.
In all the circumstances of this case, for the foregoing reasons, I find that the interests of justice do not favour the recall of any of these witnesses and accordingly the application to recall these witnesses is refused.
The trial judge’s refusal to certify
On 24 October 2017, the applicant made an application for certification under s 295(3) of the Act that one or other of the preconditions within that subsection had been met in respect of the recall ruling. Having heard submissions from both the applicant and the prosecutor, the trial judge refused to certify. Relevantly, he said:
Yesterday I refused the defence application to recall the four complainants and the witness [JS] for further cross-examination. In determining whether it is appropriate that I certify that the interlocutory decision is of sufficient importance to the trial to justify it being determined on an interlocutory appeal it is necessary that I undertake a value judgment. I must consider the merits of any appeal.
In my opinion I consider the submissions put by the defence to be totally without merit. I regard the prospects of success of an interlocutory appeal in these circumstances as quite hopeless. I therefore refuse to certify pursuant to s 295(3)(b) of the Criminal Procedure Act as requested by the defence. I regard the proposed defence appeal as baseless.
The present applications
On 25 October 2017, the applicant filed an application for a review of the trial judge’s refusal to certify and an application for leave to appeal against the recall ruling. The proposed grounds, which were in identical terms in both applications, were as follows:
1.1The learned Trial Judge erred in having concluded that the application to recall prosecution witnesses was baseless, without merit and not attended by sufficient doubt for the purpose of certification under section 295(3)(b) of the Criminal Procedure Act 2009, in circumstances whereby such a conclusion is so unreasonable or plainly unjust that it may be inferred that there has been a failure properly to exercise the discretion by His Honour under that section;
1.2The learned Trial Judge erred in considering whether or not the matter ought be certified under section 295(3)(b) of the Criminal Procedure Act 2009, insofar as His Honour failed to have due regard to the consequences which would follow if His Honour’s decision proved erroneous, as required under common law;
2.1The learned Trial Judge erred in having misunderstood the importance of the application and the matters raised therein to the case for the accused;
2.2The learned Trial Judge erred in His Honour’s approach to the question of certification under section 295(3)(b) of the Criminal Procedure Act 2009, so as to have applied incorrect legal principles, taken into account irrelevant considerations and/or failed to take into account relevant considerations, insofar as His Honour:
(a)erroneously required the accused to satisfy His Honour that an actual benefit would be had from recalling the said witnesses;
(b)failed to consider or satisfy himself in accordance with common law principles that the prosecution would, if the application was granted, suffer real and incurable prejudice;
(c)had undue regard to matters personal to the witnesses sought to be recalled, such as their status as complainants, reluctance to give evidence previously, logistical issues in having them return and the likelihood that further cross-examination would be focused on ‘sensitive matters’;
(d)had undue regard to the fact that the witnesses had already been cross-examined by previous Counsel for the accused who has since been ‘sacked’ by the accused;
(e)proceeded on the misconceived basis that any breach of the rule in Browne v Dunn would only prejudice the prosecution; and
(f) proceeded on the misconceived basis that that refusal of the application would not result in unfairness and complications at trial.
2.3The learned Trial Judge erred in having concluded that it was not in the interests of justice that the witnesses be recalled, in circumstances whereby such a conclusion is so unreasonable or plainly unjust that it may be inferred that there has been a failure to properly to [sic] exercise the discretion by His Honour under that section.
On 26 October 2017, this Court convened at short notice to hear both applications.
The applicant’s submissions
During oral argument, the applicant contended that the trial judge’s refusal to certify was a ‘rubber-stamping process’ as it was delivered immediately after the parties had made submissions. The applicant argued that the trial judge had adopted the view that, because the application for certification in respect of the applicant’s previous interlocutory appeal was refused, the present application for certification would have the same fate. In the event, he said that the trial judge’s decision was unreasonable.
The applicant identified five new matters raised in his amended defence response that he considered to be ‘crucial’ to the defence case. The relevant paragraphs are as follows:
3.The accused takes issue with the alleged disclosure by [SW], during her initial contact with him, of her age.
…
5.The accused takes further issue with the alleged circumstances of the electronic communication between himself and [SW], denying:
(a)that he introduced sexual references into any of those communications;
(b)that he stated he had seen pictures of her which made him want to have sex with her; or
(c)that he pressured her to ‘talk dirty’ to him.
…
7.The accused takes issue with the intimate act allegedly sought to be carried out by him with [SW] ‘after church’, denying that he has ever attempted to kiss the complainant.
…
11.The accused asserts that he believed that [SW] was over 16 years of age.
…
13.The accused takes issue with the alleged fact that he asked [PC] to meet him in the bathroom, denying that this ever occurred and that he ever asked the complainant to meet with him.
The applicant contended that he sought an opportunity to recall the complainants and JS as witnesses so that he could cross-examine each of them in relation to alleged events that, according to the applicant, had never occurred or matters of which the applicant had recently become aware after discovering new evidence. These included the issue of the applicant’s belief about the age of SW at the time of the alleged offences involving her; the alleged intimate act performed by the applicant on SW ‘after church’; communications ‘of a friendly nature’ that he had had with SW; and electronic communications with some of the complainants that the applicant alleged had never occurred.
The applicant further contended that it was not open to the trial judge to refuse the application to recall the witnesses as there was no real and incurable prejudice to the prosecution. On the contrary, so the applicant submitted, the defence would be unfairly prejudiced from the inability to cross-examine the complainants because it would have no opportunity to impugn any of the evidence given by the complainants and JS to date. The applicant argued that, in reaching his conclusion, the trial judge gave undue weight to the age of each witness and that this factor was insufficient to overcome the prejudice that would be suffered by the defence from not recalling the witnesses. The applicant conceded that it was reasonable for the trial judge to take into account the traumatic nature of the alleged offences and the youth of the complainants; however, the applicant said that these considerations could not outweigh the common law principles in favour of recalling witnesses and the ability of the defence to put its case ‘fully and fairly’.
Applicable principles — review of refusal to certify
By the operation of s 295(2) of the Act, a party to a trial on indictment may only appeal against an interlocutory decision with the leave of this Court. Where, as in the present case, the interlocutory decision does not concern the admissibility of evidence, s 295(3)(b) provides that a party may not seek leave to appeal unless the judge who made the interlocutory decision certifies, among other things, ‘that the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal’. As indicated above, the trial judge in the present case refused to certify.
Generally speaking, this Court will not lightly overturn a decision by a judge below to refuse to certify for an interlocutory appeal.[8] The rationale is that interlocutory appeals necessarily involve an element of fragmentation of the criminal justice process, which is almost always undesirable and contrary to the public interest.[9] It is important to recognise that, when it comes to certification, ‘the judge retains a discretion, to be exercised after consideration of the benefits and disadvantages in the administration of justice, in taking one course or the other’.[10]
[8]Kumar v The Queen [2013] VSCA 297.
[9]Ibid [24] (Weinberg JA, with whom Coghlan JA and Lasry AJA agreed). See also DPP v FM (2013) 45 VR 64, 75 [55] (Ashley, Weinberg and Coghlan JJA).
[10]WK v The Queen (2011) 33 VR 516, 545 [115] (Harper JA).
It is not in dispute that the trial judge’s refusal to certify under s 295(3) of the Act involved an exercise of discretion which, on appeal, attracts the operation of the principles in House v R.[11] In applying such principles to an interlocutory appeal in a criminal matter, this Court has said that the task involves ‘an assessment as to whether the judge approached the question by reference to correct principles and whether it was open for him to draw the evaluative conclusion that was drawn’.[12]
[11](1936) 55 CLR 499 (‘House’). See KJM v The Queen (2011) 33 VR 11.
[12]CV v DPP [2014] VSCA 58 [17], quoted in Bray (a pseudonym) v The Queen (2014) 46 VR 623, 638 [63].
Applicable principles — leave to appeal against interlocutory decision
In relation to the granting of leave to appeal against an interlocutory decision, s 297 of the Act sets out the circumstances in which such leave may be granted:
(1)Subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision only if the court is satisfied that it is in the interests of justice to do so, having regard to—
(a)the extent of any disruption or delay to the trial process that may arise if leave is given; and
(b)whether the determination of the appeal against the interlocutory decision may—
(i) render the trial unnecessary; or
(ii) substantially reduce the time required for the trial; or
(iii)resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or
(iv)reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and
(c) any other matter that the court considers relevant.
(2)The Court of Appeal must not give leave to appeal after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial.
(3) If the Court of Appeal refuses leave to appeal under this section, the refusal does not preclude any other appeal on the issue that was the subject of the proposed appeal.
In Director of Public Prosecutions v Pace,[13] Priest and Beach JJA explained the caution to be exercised by this Court when determining whether to grant leave to appeal an interlocutory decision in the following terms:
[T]he language of the statute makes it plain that interlocutory appeals should not be the norm, and should be reserved for unusual cases where the determination of an appeal against an interlocutory decision may render the trial unnecessary; substantially reduce the time required for the trial; resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial. These fetters on appellate intervention emphasise, in our view, that Parliament intended to uphold the authority of the trial judge, and that such authority should not lightly be interfered with. Thus, in our view, without seeking to be overly prescriptive, leave to appeal an interlocutory decision should not readily be granted, and should only be granted if, for example, it can clearly be discerned that there has been some error of principle which may lead justice to miscarry, or which may be permeated unless corrected …[14]
[13](2016) 45 VR 276.
[14]Ibid 283–4 [25].
In Pope (a pseudonym) v The Queen,[15] this Court considered an application for a review of a decision by a judge who had refused certification under s 295(3) of the Act in respect of a ruling concerning the admissibility of coincidence evidence. One of the issues in that case was whether the judge erred in the exercise of her discretion under s 101(2) of the Evidence Act 2008. Weinberg, Priest and Beach JJA set out the following principles relevant to the application of House in this context:
Because the present application for review must be dealt with under the principles laid down in House, the question to be considered, at this stage, is whether the trial judge’s ruling, refusing certification, and admitting the coincidence evidence, can be seen to be erroneous in the House sense.
In other words, although s 101(2) of the Evidence Act 2008 is not specifically couched in the language of discretion, the manner in which an appeal against a decision under that section is to be determined by this Court, is governed by principles similar to those applicable to a challenge to the exercise of judicial discretion.
In that regard, it is not enough that the members of this Court consider that, if they had been in the position of the trial judge, they might have arrived at a different decision, under the terms of s 101(2). It must appear that some error has been made in arriving at the decision, analogous to an error vitiating the exercise of discretion. If the judge below has acted upon a wrong principle, if she has allowed extraneous or irrelevant matters to guide or affect her, if she has mistaken the facts, or if she has not taken into account some material consideration, then her decision may be set aside.
Of course, some decisions may appear on their face to be unreasonable or plainly unjust. In such a case, this Court may infer that in some way there has been a failure properly to exercise the power conferred by s 101(2) to exclude this evidence. The nature of the error may not be discoverable but it must be clear that the decision arrived at was not reasonably open.[16]
[15][2017] VSCA 324.
[16]Ibid [45]–[48].
More recently, in Victor Martin (a Pseudonym) v The Queen,[17] Weinberg, Whelan and Kyrou JJA said:
It was accepted before us that the trial judge’s decision to refuse a permanent stay was a decision to which the principles in [House] applied. Before an appellate court will interfere in a discretionary judgment of this kind it must be satisfied that the judge has acted upon a wrong principle, taking into account irrelevant matters, mistaken the facts, failed to take into account some relevant matter, or reached a conclusion which is unreasonable or plainly unjust so that the appellate court may infer that in some way there has been a failure to properly exercise the discretion …[18]
[17][2017] VSCA 328.
[18]Ibid [20] (citation omitted).
Analysis
Before the trial judge and this Court, the applicant placed great reliance upon what Hunt CJ at CL said in R v Fleming[19] in relation to requests to have witnesses recalled for cross-examination:
Just as, in a civil case, a judge should always exercise his discretion to grant an amendment — no matter how negligent or careless the party had been who seeks it — unless there is created prejudice which cannot be cured by an order for costs … so, generally speaking, should a judge always accede to a request to have a witness recalled for cross-examination upon a point of substance which has been overlooked — however incompetently — unless real and incurable prejudice is created for the party calling that witness. The attitude should be the same where something arises for the first time at a stage of the trial after the witness has given evidence.
[19](Unreported, NSW Court of Criminal Appeal, Hunt CJ at CL, 12 December 1989).
The applicant contended that what he sought to do was governed by the principle set out in the above passage and that it could not be said that the prosecution would suffer from ‘real and incurable prejudice’ if the witnesses were recalled. The applicant accepted that the trial judge had a discretion to accede to or reject the application.[20]
[20]See Simon v The Queen [2013] NSWCCA 328 [36]–[37] (Macfarlan JA, Latham and RA Hulme JJ)
It was entirely appropriate for the trial judge to proceed on the basis that he would rule on the application in terms of whether the interests of justice required that leave be granted. Approaching the matter in that way necessarily entailed consideration of whether the applicant would have a fair trial.
An examination of two versions of the defence reveal that the amended defence response of 10 October 2017 is more detailed than the initial defence response. However, the amendments are largely in the form of particulars; the general tenor of the defence is unaltered.
The applicant also suggested that, unless he was allowed to put the matters which he sought to put upon recalling the witnesses, he would be exposed to criticism based upon the principles in Browne v Dunn. The respondent accepted in argument before this Court that the prosecution would be severely constrained as to the use of the principle in Browne v Dunn by the opposition to the witnesses being recalled. In any event, it is premature to consider what impact, if any, that matter might have on the trial.
In our opinion, it was open to the trial judge to refuse to certify. He regarded ‘the submission put by the defence to be totally without merit’ and regarded ‘the prospects of success of an interlocutory appeal in these circumstances as quite hopeless’. The trial judge was entitled to reach that conclusion and refuse to certify.
Even if we were persuaded that it was not open to the trial judge to refuse to certify, we would not have granted leave to appeal against the recall ruling.
The decision at which the trial judge arrived in the recall ruling was reasonably open. He identified the correct legal principle to be applied. Evidently, both the applicant and the prosecutor drew the trial judge’s attention to a number of relevant considerations to which the trial judge duly had regard, including the consequences of non-compliance with the rule in Browne v Dunn, the procedural history of the matter before him, the fact that the witnesses are young persons and the reluctance on the part of the witnesses to give evidence due to the sensitive and traumatic nature of the charged offences. It was reasonably open to the trial judge to conclude that the failure to allow the recall of any of the witnesses did not hinder the presentation of the defence case or significantly increase the risk of complications at trial. The trial judge did not take into account any irrelevant matters. Having dealt with all the issues raised by the applicant, he concluded that it was not in the interests of justice to grant the application. His decision cannot possibly be described as irrational or wholly unreasonable. For our own part, we might have added that, when the trial is looked at as a whole, the matters sought to be put to the witnesses are not of substance.
Conclusion
It was for these reasons that we refused the application for a review of the trial judge’s refusal to certify.
Moreover, as indicated above, even if we had been persuaded that certification should not have been refused, we would not have granted leave to appeal.
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