McGee (a pseudonym) v The Queen
[2020] VSCA 146
•4 June 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0241
| CALLUM McGEE (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | MAXWELL P, T FORREST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 May 2020 |
| DATE OF JUDGMENT: | 4 June 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 146 |
| JUDGMENT APPEALED FROM: | DPP v [McGee] (Unreported, County Court of Victoria, Judge Marich, 9 December 2019) (Ruling) |
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CRIMINAL LAW – Appeal - Interlocutory appeal – Permanent stay – Historical sexual offences – Indecent assault and common assault – Delay of 55 years between alleged offending and any possible trial – Judge refused stay – Whether specific error vitiated exercise of discretion – Whether deceased witnesses central or peripheral – Lost opportunity for defence – Significance to be assessed by reference to defence case – Crown concession that judge erred in assessing significance by reference to prosecution case – Discretion reopened – Very substantial lapse of time – Deceased witnesses centrally important – Prosecution witness directly contradicts complainant’s account – Gaps in evidence – Four year delay between complainant’s first statement and subsequent police investigation – Rare and exceptional circumstances – Leave to appeal granted – Appeal allowed – Stay ordered – R v FJL (2014) 41 VR 572 and Morton (a pseudonym) v The Queen [2020] VSCA 49 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C F Thomson | Miceal Ambrose Lawyers |
| For the Respondent | Dr N Rogers SC with Ms E Hill | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
T FORREST JA
WEINBERG JA:
Introduction
The applicant is facing trial in the County Court on an indictment alleging five charges of indecent assault upon a male person under the age of 16[2] (charges 1, 2, 3, 4, and 6) and one charge of common assault[3] (charge 5). The offences were alleged to have been committed in 1966 and 1967.
[2]Crimes Act 1958, s 68(3), as at 30 September 1958.
[3]Contrary to common law.
Not surprisingly, the applicant applied to the trial judge for a permanent stay of these proceedings. He submitted that the passage of time since the alleged offences meant that it was impossible for him to receive a fair trial. The judge’s reasons for refusing that application were delivered on 9 December 2019.[4] The applicant immediately indicated that he proposed to bring an interlocutory appeal against that refusal. Her Honour concluded, pursuant to s 295(3)(b) of the Criminal Procedure Act 2009, that the decision to refuse a stay was of sufficient importance to the trial to justify it being determined on an interlocutory appeal. Accordingly, she granted certification.
[4]DPP v [McGee] (Unreported, County Court of Victoria, Judge Marich, 9 December 2019) (Ruling) (‘Reasons’).
For reasons that follow, we would grant leave to appeal against the refusal to order a permanent stay. We would allow the appeal, and make the order sought.
Background facts
The offences charged are all alleged to have been committed against a single complainant, whom we will designate ‘WP’. As indicated, they are said to have taken place in about 1966 or 1967. That means that they are now some 53 or 54 years old.
WP was born in August 1953 and is now aged 66. His parents died when he was young. He and his brothers, ‘BB’ and ‘GG’, spent some time thereafter at a Catholic orphanage in Melbourne. Ultimately, however, WP and BB were put into the care of a boys’ home in Geelong. The youngest brother, GG, was adopted out.
BB died in 2013. This was shortly after he made his own complaint to the police regarding sexual abuse on the part of the applicant. WP has had no contact with GG for many years. That brother lives overseas and is, essentially, incommunicado. It appears that police have not spoken to him.
The boys’ home was run by the Christian Brothers. WP asserts that throughout his time there, he was sexually abused by several of the Brothers. He also claims that he was physically mistreated by them.
According to WP, it was common practice at the home that the boys were boarded out to private homes during the school holiday period. Those who took the boys in for the vacation period were known as ‘holiday hosts’.
WP says that he can remember going to the applicant’s parents’ home in country Victoria over four consecutive holiday periods during 1966 and 1967. The parents lived on a dairy farm. The father was a retired, and apparently well respected, police officer of many years’ standing. The mother was an important figure in the local Catholic Women’s League. Both parents died many years ago.
The applicant was the youngest child. He was born in November 1944 and is presently aged 75. He had two older brothers, ‘DD’ and ‘KK’. DD is no longer alive, but KK, though aged 80, is still available to give evidence. The applicant also has an older sister, ‘MM’. She was already married at the time when these offences are said to have been committed. She is now aged 79.
WP says that the applicant’s family lived in an old, single-storey, weatherboard house. He says that when both he and his brother, BB, went there, they would share a bedroom. They would sleep together in a double bed. The bedroom was in what he has consistently described as ‘an enclosed area of the [veranda]’. WP provided a hand-drawing of that house to police, including the location of the enclosed area that he describes.
Charge 1 — indecent assault — the ‘bedroom allegation’
WP claims that he first stayed at the farm when he was aged about 13. He says that on his first night at the farm, he and his brother were getting changed into their pyjamas when the applicant walked into the bedroom area and, without saying anything, grabbed him by the scrotum and penis and squeezed hard. This gave rise to charge 1 on the indictment, indecent assault.
According to WP, KK came into the bedroom while this was happening. KK asked the applicant what he was doing. KK then gave him ‘a clip behind the ears and told him to get out.’
Charge 2 — indecent assault — the second ‘bedroom allegation’
Later that same night, the applicant entered the bedroom area again. Both brothers were in bed. According to WP, the applicant masturbated him. This gave rise to charge 2, indecent assault. At that stage, KK came into the bedroom again and this time ‘belted’ the applicant, telling him to get out. According to WP, KK apologised to him for his brother’s behaviour and assured him that he would try to stop it from happening again.
WP says that he was next sent to the farm in the Christmas holidays of the same year, presumably 1966. On his first night there, he claims that he spoke to KK about the applicant’s behaviour, and asked KK to keep an eye on him. He told KK that he did not want the applicant to repeat his previous conduct. KK assured him that he would speak to the applicant.
It is appropriate to note at this stage that in 2017, KK made a statement to police regarding WP’s allegations. KK insisted in that statement that, contrary to WP’s account, there never had been an enclosed part of the veranda at his parents’ farm that had been used as a bedroom.
KK said that he remembered WP and his brother. He stated firmly that WP’s account of KK having been in the bedroom area while the applicant was engaged in sexual abuse was entirely false. He denied having seen the applicant in the boys’ bedroom or having witnessed any inappropriate behaviour on the part of the applicant towards them.
KK also denied WP’s assertion that he complained to KK about the applicant having molested him. He said that had anything of that kind occurred, he was ‘pretty sure’ that he would remember it. He said that he would have told his parents and was confident that something would have been done about it.
Charge 3 — indecent assault —the ‘milking shed allegation’
According to WP, he and BB would help milk the cows every morning and evening while at the farm. The applicant would help WP with that task.
According to WP, on his second evening at the farm, he and BB were in the milking shed when the applicant came up behind him. The applicant put his hand between WP’s legs and grabbed his penis and scrotum with an open hand, squeezing hard. This gave rise to charge 3, indecent assault. WP says that he yelled out in pain. The applicant then removed his hand and moved away. The applicant then continued to work along the line of cows, pretending that nothing had happened.
According to WP, the applicant grabbed him in the same manner five or six more times that same evening. These were said to be ‘uncharged acts’.
Charge 4 — indecent assault — the third ‘bedroom allegation’
WP says that a couple of nights after the boys arrived for the Christmas holidays, the applicant came into their bedroom late at night while he and his brother were sleeping. WP awoke to find a hand grabbing his penis and pulling it down towards his knees. He yelled out in pain. This gave rise to charge 4, indecent assault.
WP says that while he was in the milking shed, the applicant grabbed him by the genitals about every second day. These were uncharged acts.
WP claims that he spoke to various Brothers at the boys’ home about the applicant’s abuse towards him. He says that he was disbelieved, belted, and sent on his way.
Charge 5— common assault —the ‘hay shed allegation’
On a separate occasion, while WP was staying at the family farm over the Christmas holidays, he went to a hay shed with the applicant. As explained below, this was eventually identified as a shed located some distance away, on a farm that had been purchased by DD in 1957.
Upon arrival at the hay shed, the applicant pushed WP face-down into a hay bale. He pressed his foot into the middle of WP’s back, holding him down. The applicant then tied WP’s legs together with rope and lifted him off the ground by his feet. He next hung WP upside down from a rafter. This gave rise to charge 5, common assault.
Charge 6 — indecent assault — the second ‘hay shed allegation’
According to WP, whilst he was tied up and hanging from a rafter in the hay shed, the applicant undid WP’s pants and exposed his penis and scrotum. The applicant then stroked it. This gave rise to charge 6, indecent assault.
At that point, a car horn sounded. The applicant at once lowered the rope and freed WP. He then sat with WP on the hay and pretended that nothing untoward had occurred.
Complaints to police — general
Initially, there were three separate sets of complaints made to police regarding the applicant’s conduct at the farm. As indicated, there were the complaints made by WP. In addition, BB made a separate statement alleging similar sexual abuse against himself. Finally, a third alleged victim, ‘LW’, who was also a young boy assigned to the farm, claimed to have been molested by the applicant.
As previously indicated, BB has died since making his statement to police in 2013. No further proceedings are contemplated in relation to his complaints. More recently, LW has also died. It was originally contemplated that the applicant would face trial on charges relating to the abuse of LW. It was anticipated that this would be based upon LW’s evidence at committal, as an exception to the hearsay rule. However, the judge ruled that LW’s statements and evidence from the committal were inadmissible. Accordingly, LW’s allegations are no longer the subject of any charge against the applicant, though they were listed as charges 7–9 on the original indictment.[5]
[5]It should be noted that the judge indicated, in her ruling refusing to grant a permanent stay in respect of WP’s allegations, that had she not held PL’s statements and committal evidence inadmissible, she would, in any event, have granted a permanent stay of charges 7–9. See Reasons, [64]. She gave no reasons as to why the LW matters warranted such a stay, whereas WP’s claims did not. We were told, however, that there were additional difficulties associated with PL’s capacity to give coherent evidence that may have played a part in that distinction.
WP’s complaints to police
WP first complained to police about the applicant in 2013. On 21 August 2013, he made a statement concerning, among other things, the applicant’s misconduct. At that stage, BB was still alive and, as we have said, had earlier that year made his own statement to police regarding the applicant’s sexual abuse of him at the farm.
In his first statement, WP outlined a history of brutality and persistent sexual abuse on the part of the Brothers at the boys’ home. Indeed, the first 32 paragraphs of the 45 paragraph statement made by WP concerned abuse on the part of the Brothers, rather than the applicant and the farm.
WP’s statement then proceeded to outline his allegations against the applicant. Remarkably, nothing further happened for close to four years. Then, on 17 March 2017, WP made a second statement to police. He explained in that statement that he had previously only dealt briefly with his allegations against the applicant, and would now elaborate upon them.
WP’s second statement was made after he had been given access to certain files that he said assisted him in placing events in their correct timeframe. He could now recall having been sent to the farm on some five separate occasions. The first of these had been in the September holidays in 1966. WP said that on that occasion, he and BB had slept in a bedroom which was ‘an enclosed area on the [veranda]’. This was the first time that he identified the place where he and BB had slept, at the farm, in that way.
In both his first and second statements, WP referred to the incident in which he was allegedly tied up and hung from a rafter. In his first statement, WP described this incident as having occurred in ‘the hay shed’. In neither statement did he designate where that particular hay shed had been located.
On 12 October 2017, WP made a third statement to police. In that statement, he reiterated that when he and his brother were at the farm, they slept in ‘an enclosed part to the [veranda]’, near the back door. WP said that the enclosed area ‘was constructed with timber posts and in between the posts was timber work and between that was fly wire.’ As indicated, he provided police with a sketch of the farmhouse, purporting to show the actual location where he and his brother slept.
Importantly, WP asserted, for the first time, that the hay shed incident had not taken place at the farm but, rather, at DD’s farm, some distance away. WP provided further detail, claiming that the applicant had driven him to DD’s farm in order to castrate some calves. DD’s property had no house on it at the time, but only a big hay shed.
WP gave further details of how he came to be tied up and strung from the rafters. He also gave further details of how the applicant had stroked his penis. He described how, some thirty minutes or so after their arrival at the hay shed, a second car containing DD, KK, and his brother, BB, pulled up. Immediately, the applicant untied him and made it appear that nothing inappropriate had occurred.
It should be noted that WP’s third statement was made three weeks after the applicant had been interviewed by police, and after KK had made his statement, effectively branding WP a liar or, at least, a fantasiser.
It should also be noted that in his record of interview, the applicant had told police that the hay shed incident simply could not have occurred. This was because, in the applicant’s mind, the hay shed described to him was one that was located on the parents’ farm. As the applicant observed, the particular shed was so close to the farmhouse itself that no one would bother driving to it.[6] In addition, the applicant said that cars could not readily access that area as they were likely to get bogged down.
[6]The distance was said to be no more than about 200 metres.
One can reasonably infer that both the applicant’s account and KK’s exculpatory statement were drawn to WP’s attention by police prior to his having made his third statement. It is, at least, reasonably possible that this led to WP’s attempts to clarify the various accounts that he gave in his first and second statements. Whereas he had previously spoken of the ‘hay shed’ as the location of charges 5 and 6, he now explained that these offences took place in a hay shed located on DD’s property.[7]
[7]No doubt it was on the basis of WP’s third statement to police that the indictment concerning charges 5 and 6 alleges that the common assault and the indecent assault at the hay shed both occurred at the location of DD’s former property.
From what we were told by Mr Thomson, on behalf of the applicant, there was no evidence before the judge below as to whether the hay shed on DD’s former property is still standing. Nor is there any evidence to suggest that police have made enquiries regarding that matter, still less that they have sought to inspect any such structure.
KK’s statement to police and evidence at committal
As previously indicated, KK is now aged 80. In his 21 September 2017 statement to police, he provided a detailed description of his parents’ farmhouse. He agreed that the property had a veranda that wrapped around three sides of the house. He asserted, unequivocally, that ‘there has never been an enclosed part to this veranda that was used as a bedroom.’
Unlike the applicant, who told police that he had no memory whatsoever of WP or BB, KK said that he remembered them both. He said that while the boys were at the farm, they at all times seemed quite happy. He had no problems with either of them. He added that he had spent a good amount of time with them because he was working full time on the farm during the relevant period.
As we previously indicated, KK insisted that he never caught the applicant in any bedroom with the boys. He maintained that he never had any inkling that the applicant may have been behaving inappropriately. He denied WP’s allegation of having spoken to KK about the applicant’s behaviour. He said that he was ‘pretty sure’ that had any such conversation taken place, he would have remembered it. He added that if anything of that kind had been said to him, he would have told his parents. He stated confidently that something would have been done about it.
KK next said that in 1967, the applicant had purchased a dairy farm immediately adjacent to that of his parents. It was about 160 acres and had a house on it. At some stage, all of the parents’ dairy cows were transferred to the applicant’s farm. The parents then moved into farming beef cattle.
KK gave evidence at the committal. The general tenor of his evidence was much the same as set out in his statement of September 2017. If anything, he was even more adamant in his rejection of WP’s account of what had supposedly occurred back in the 1960s. He described WP’s complaints against the applicant as ‘absolutely false’. These included WP’s allegation of his interaction with KK, and KK’s response, at the relevant time.
It might be thought somewhat unusual for a prosecution of this kind involving, as it does, historical sexual offences, to proceed on the basis that the Crown will, as a matter of fairness, call an apparently credible witness who will specifically and directly contradict the central allegations made by the sole complainant, whose evidence is unsupported. Plainly, the fact that the prosecution proposes to call KK means that it has not formed the view that he is not a witness of truth. Of course, the prosecution must be expecting to make an application under s 38 of the Evidence Act 2008 to cross-examine KK, including as to credit.
It is by no means uncommon, in a case of this kind, for the prosecution to call a witness or witnesses whose evidence may be adverse to that of a complainant. However, KK’s evidence goes much further. It stands in absolute and stark contrast with WP’s account. It is difficult to resist the conclusion that KK is accusing WP of having fabricated his allegations against the applicant.
MM’s statement to police
On 16 October 2017, MM made a statement to police. She said that she lived with her parents at the farm until 1962, when she married. She and her husband moved to a dairy farm about half an hour’s drive from the parents’ farm. MM’s house was an old, weatherboard, three-bedroom home, built in the 1900s. She had no recollection whatever of having any boys in the care of the Brothers come to stay with her in the 1960s. She could not remember WP or BB.
In 1968, MM employed a nanny to help with her children. The nanny slept in a section of the veranda that was closed in to become a bedroom, but that area was ‘decommissioned’ in about 1970. MM sold the farm in 2008 and could not say whether the house still stood on the property.
Applicant’s record of interview
The applicant’s memory of the 1960s, as it emerged in his record of interview, was somewhat mixed. Not surprisingly, he was confused about some dates. For example, he stated that he believed that the last year that children from the boys’ home were accepted to stay on the farm would have been 1963 or 1964 when his brother, DD, had a nervous breakdown. He was plainly wrong in his recollection of dates.
The applicant told police that he had no memory whatever of WP or any of his brothers. He said that if the boys had been at his parents’ farm, they would probably have slept in either the front bedroom or a little bedroom on one side of the house.
The applicant insisted, as did KK, that there had never been an enclosed area used as a bedroom on the veranda. Moreover, insofar as WP complained that he had yelled out in pain when the applicant grabbed his penis,[8] the applicant told police that his parents’ bedroom was right opposite, and immediately adjacent to, where the boys would have been sleeping. He claimed that his parents would certainly have heard any raised voices crying out in pain.
[8]WP also claimed that BB had yelled out in pain when he was assaulted by the applicant.
When the allegations giving rise to charges 1 and 2 were specifically put to him for comment, the applicant denied them and insisted that what WP was saying could not have occurred. He also denied the milking shed allegations giving rise to charges 3 and 4. He said that by 1966 and certainly 1967, when those offences were said to have been committed, his parents no longer kept dairy cows at the farm. That was because he had purchased the adjoining property prior to February 1966, when decimal currency came in. He told police that he took over his parents’ dairy herd and moved it to his own farm because his parents had decided to keep only beef cattle.
With regard to the hay shed allegations (charges 5 and 6), it seems plain from a reading of the transcript of the record of interview that the applicant understood these allegations to involve a hay shed located on his parents’ farm.
The judge’s ruling
The judge began her ruling by setting out the various matters upon which the applicant relied in support of his application for a permanent stay. She stated:
The accused has submitted that all of the charges laid against him should be permanently stayed as an abuse of process because of the prejudice caused by one or more in accumulation of the following:
(a)the delay between 51 and 53 years from commission of alleged offences to trial;
(b)the 75 year old accused’s lack of memory of the time surrounding the offending;
(c)the fact that had these allegations been dealt with at the time, it is likely that the then youthful accused, had he been found guilty, with no prior convictions and good prospects of rehabilitation, would not have been sentenced to immediate imprisonment. The allegations do not involve penetration and could now be dealt with summarily;
(d)the impossibility of demonstrating alibis;
(e)the death of one of the complainants;
(f)the impossibility of now demonstrating collusion between the complainants where there was a clear opportunity for this to happen;
(g)the difficulty of disentangling the evidence of the complainants from their similar complaints about abuse by Christian Brothers at [the boys’ home];
(h)the impossibility of now testing whether there were complaints made to relevant staff at [the boys’ home] about the conduct of the accused, as those staff are dead. The one [B]rother who is still alive denies any such complaint being made;
(i)the unavailability of other crucial witnesses, including the parents and two siblings of the accused;
(j)the compelling evidence of the remaining live brother of the accused ([KK]) who contradicts the evidence of [WP]…;
(k)the unreliability of the evidence of the complainants about the circumstances of the offending and the alleged attempts of the police to smooth over the contradictions in their accounts.[9]
[9]Reasons, [1].
The judge then summarised each of the allegations forming the basis of charges 1–6. She then outlined, in some detail, a number of the points made in support of the grant of a permanent stay.
Her Honour noted that it was submitted that the dates of the alleged offending had been the subject of ‘stimulated memory’.[10] In addition, it was submitted that a deterioration in the quality of memory was not always patent, but could sometimes be difficult to discern. In that regard, the applicant’s memory, as exemplified in his record of interview, was far from good. For example, he insisted that boys from the boys’ home did not come to the farm after 1963. Plainly, that was quite wrong. She noted, however, that in some respects, the applicant’s memory of detail was reasonable. She gave as an example his recollection of having purchased an adjoining farm in or about 1966 and having moved the dairy cows to the new property.
[10]Ibid [13].
Turning to the issue of the seriousness of the offences charged, the judge recognised that no act of penetration was alleged. She also noted that the applicant had not been in a position of trust. Nonetheless, the offences were inherently serious.
The judge accepted that the unavailability of a number of witnesses in this case, through death, put the applicant at a significant forensic disadvantage. For example, an important issue in the trial concerned whether there existed, at the time, an enclosed veranda area used as a bedroom, as WP claimed. If not, WP and BB would have slept in a bedroom immediately opposite and adjacent to that of the parents’ bedroom. The proximity of those two rooms could be seen from a photograph exhibited to the depositions. Had the offending occurred as described, and WP and his brother yelled out as claimed, it would be difficult to conceive of the parents not having heard what was happening.
The judge noted the fact that the applicant’s father had been a police officer for many years. It was submitted that it would defy logic, and common sense, that neither he, nor his wife, would intervene in some way if they became aware of the boys being sexually molested by their son in the adjoining bedroom.
The judge also noted the applicant’s submission that the prosecution case was so weak that the charges were clearly foredoomed to fail. In that regard, it was noted that WP’s initial statement was so bereft of detail and contained such anomalies as to require a second and, indeed, a third statement to be taken from him. Moreover, although WP and his brother had both made statements to police as far back as 2013, nothing was done about the matter for almost four years. No explanation had been forthcoming for this additional lengthy delay in charging the applicant.
It was submitted that the hay shed charges, in particular, were beset with difficulties. In part, this was because of the uncertainty associated with the location of the alleged offending. WP’s modification of his initial complaint, to make it clear once he was alerted to the applicant’s refutation of his account, that the hay shed offending had occurred at DD’s farm, rather than the parents’ farm, was said to be more than a little suspicious. In addition, WP’s account of having been strung up by his legs was said to be implausible, and arguably based upon a scene from a well‑known movie released in 2013.
It was contended that, as a matter of practical reality, given the extraordinary delay in bringing these charges, the applicant was left with no defence other than a bare denial of WP’s allegations. He was, for example, deprived of the opportunity to call evidence of an alibi, whether complete or partial. WP could not be cross‑examined effectively on matters of detail, which could have loomed large in any trial brought decades earlier.
It was submitted that the level of prejudice to the applicant in conducting a trial at this late stage of his life was such that no method could be found to ameliorate his situation.
The judge then summarised a number of authorities dealing with permanent stays based on delay. We shall return to the relevant legal principles governing these matters later in these reasons for judgment.
When, finally, her Honour came to apply the law to the facts of the present case, she concluded that the application for a permanent stay should be refused.
Her reasons for doing so are best explained in several passages in her ruling. Dealing first with the offences said to have occurred at night in the bedroom that WP occupied, the judge said:
I have summarised the Accused’s counsel’s argument as to the forensic consequences of the delay in the circumstances of the case. In relation to charges 1, 2, [and] 4 … on [WP]’s evidence, the alleged offending occur[ed] in a bedroom in an enclosed verandah at [the applicant’s parents’] farm. Though it is the defence case that no such enclosed verandah existed at the [parents’] farm, in my view this differentiates the circumstances from a case such as FJL in which the complainant herself identified the location of alleged offending as being so proximate to the bedroom of the unavailable witnesses — this is in dispute in this case. I consider that [the applicant’s] parents, and brothers other than [KK], to be peripheral and not central to the offending. [KK], who is identified by [WP] as effectively interceding in the offending, is still alive and is going to give evidence as a prosecution witness (albeit favourable to the Accused’s case). His sister, who lived on the farm with the enclosed verandah, is also available. These witnesses are properly described as central, and are available. The death of [WP]’s brother [BB] I consider not to disadvantage the Accused, as I have noted that in his police statement he also implicates the Accused in child sexual abuse.[11]
[11]Ibid [60].
The judge then dealt with the milking shed and hay shed allegations, charges 3, 5, and 6 respectively. She said:
The passage of time, the consequential unavailability of witnesses, the lack of precise identification of a date, and of a place in relation to the hayshed/milkshed allegations, and the resultant inability to rely on alibi evidence are all matters that would attract appropriate and strong forensic disadvantage warnings. Indeed in this case the accused relies on more than a mere denial, he relies upon impossibility and implausibility, and there is no obstacle to a jury readily understanding those limbs of his reply to the charges.[12]
[12]Ibid [61].
In relation to the submission that the charges in this case were not of such gravity as to warrant proceeding with this trial, after more than five decades, her Honour said:
I am mindful of the fact that the public interest requires my consideration of the seriousness of the charges. Though the allegations are not of penetrative sex, and I do not accept that they occurred in breach of trust, I consider the allegations to be inherently serious, involving a disparity in age, repetitive and opportunistic alleged offending, said to have been committed upon a vulnerable victim.[13]
[13]Ibid [62].
The applicant’s case before this Court
In his written summary of contentions before this Court, the applicant elaborated upon some of the matters raised before her Honour below. In particular, it was submitted that her Honour made a number of specific errors which either taken alone, or in combination, vitiated the exercise of her Honour’s discretion in refusing a permanent stay.
More particularly, in his summary of written contentions, the applicant submitted:
(a)[The judge] erred in finding that [the applicant]’s father, a former police officer, his mother, the President of the Catholic Women’s League … [DD], all now dead, were peripheral to the alleged offences
(b)She erred in finding that a forensic disadvantage warning[, given pursuant to s 39(1) of the Jury Directions Act 2015] could cure the prejudice caused by the 54 year delay, the lack of precise identification of dates and places … and the inability to rely on alibi evidence.
(c)She erred in assessing the alleged offences as [‘]inherently serious[’] when they did not involve penetration … and were unlikely to have led to a sentence of imprisonment if [the applicant were to be convicted] at the time.
(d)She erred in not taking into account … oversight by police had led to a further four year delay in prosecuting the allegations.
(e)She erred in not taking into account the fact that any trial will now not take place until at least … 2021 by which time, [the applicant] will be … and [KK, in particular] … will be 82 …
(f)She erred in not taking into account the fact that the complaint witnesses [the two persons at the boys’ home to whom WP claims he spoke of having been assaulted by the applicant] have died and so the complaint evidence is unable to be tested.[14]
(g)She erred in not taking into account the weakness of the prosecution case; and
(h)She erred in not finding that all of the above relevant factors in combination led to any trial being so gravely unfair as to be an abuse of process.
[14]Despite that fact, the Crown’s position remains that it proposes to elicit from WP evidence that he made those complaints at about the time of the alleged offending.
Paragraph (a) — centrality of the parents as witnesses
In support of the error referred to in paragraph (a) above, the applicant noted that, assuming that there was no enclosed area on the veranda as WP claimed, the bedroom allegations that gave rise to charges 1, 2, and 4 could only have taken place in a bedroom immediately adjacent to that occupied by the applicant’s parents. Given WP’s assertion that he (and his brother) yelled out when these offences were being committed, the parents would, undoubtedly, have heard his cries, had they been uttered.
Further, the applicant’s father, as a retired police officer of many years’ standing, would almost certainly have intervened had any such conduct on the part of the applicant come to his attention. In other words, it was submitted that unlike many other cases where there might be uncertainty as to what a missing witness would say had that witness been available, there was far less uncertainty in this case about what the content of the evidence of the father (and mother) would have been.
In short, it was submitted that the applicant’s parents could not properly be described as persons whose evidence would have been ‘peripheral’. In fact, given the matters in issue in relation to charges 1, 2, and 4 they could only be regarded as central witnesses.
It was submitted that even if the Crown sought to proceed on the basis that, contrary to what all other witnesses would say, WP’s description of the sleeping arrangements was correct, the parents would still undoubtedly have heard the boys yelling out if they screamed in pain, as WP claimed.
In addition, it was submitted that the mere fact that the veranda story might still be in issue demonstrated just how much prejudice there was to the applicant’s defence by reason of the delay in this case. Had the allegations come forward in a timely manner, the existence of an area set aside for sleeping on the veranda would have been ascertained without the slightest difficulty.
Paragraph (b) — forensic disadvantage warning
With regard to the applicant’s paragraph (b), Mr Thomson submitted that no significant forensic disadvantage warning could possibly overcome the very real prejudice suffered by the applicant as a result of the 54 year delay. In particular, the death of the applicant’s parents meant that evidence that was critical to the defence could no longer be put before the jury.
Paragraph (c) — inherent seriousness of the offences
The applicant submitted that to characterise these offences as ‘inherently serious’ was, perhaps, an overstatement. There was no suggestion that, with regard to WP, the applicant was in any position of trust.
Even more than 50 years later, these offences, though indictable, can be dealt with summarily, and often are. The applicant has no prior convictions of any kind and there were no subsequent convictions. He must be regarded as having good prospects of rehabilitation. Having regard to his age at the time of these alleged offences, it would have been inconceivable that he would have received a custodial sentence, even had he been convicted.
It was further submitted that the same can be said of the likely outcome if he were now to be convicted. In that regard, it was noted that the present case stands in stark contrast with almost all other recent examples of applications for permanent stays in historic sexual offence matters. For example, in Morton (a pseudonym) v The Queen,[15] which also involved an extraordinary delay of more than 50 years, the charges were vastly more serious than in the present case and involved multiple complainants.[16] Yet, this Court, by majority, held that a permanent stay ought to have been ordered, no other course being reasonably open to the trial judge.
[15][2020] VSCA 49 (‘Morton’).
[16]Morton concerned four separate complainants, all of whom alleged vaginal penetration.
Paragraph (d) — further four year delay
It was noted that the judge, in her ruling refusing a stay, had made no mention whatever of the entirely unexplained four year delay on the part of the police, after first receiving WP’s complaint, before laying these charges.
It was submitted that such a delay was extraordinary and ought to have been given considerable weight as a factor in the exercise of her Honour’s discretion. It contributed to what is said to be an oppressive prosecution, fairly described as an abuse of process.
Paragraph (e) — no trial until late 2021, at the earliest
It was submitted that by the time this matter comes to trial, the actual delay between the alleged offences and the trial itself will be in the order of 55 years. If that is not the greatest delay in bringing a case to trial in this country’s history, it must be fairly close.
In addition, by the time this matter comes to trial, the applicant will, if he is still alive, be aged 76. His brother, KK, will be aged 82, and his sister, MM, will be aged 79. That, of itself, adds to the prejudice associated with the extreme delay involved in bringing these charges.
Paragraph (f) — death of other witnesses to whom complaints said to have been made
In many cases of historical sexual offending, evidence of contemporaneous complaints will be important for a number of reasons. Not the least of these is the fact that such evidence tends to rebut any suggestion of recent fabrication.
Depending upon the age of the alleged offences, often the person or persons to whom such complaints were made will be called to give evidence. That evidence may be thought to bolster, to some degree, the credibility of the complainant. That is so in the sense that a failure to make any such timely complaint might otherwise be viewed as casting doubt upon the complainant’s account.[17]
[17]See, however, Jury Directions Act 2015, s 52(1) and (4), and the directions that judges are now required to give in relation to the failure by a complainant to make a contemporaneous complaint.
In the present case, those Brothers to whom WP claims he complained about the applicant’s sexual abuse are, unsurprisingly, no longer alive. That does not mean that WP himself cannot give evidence of having made these complaints to those individuals, though such evidence will be unsupported, and ought to carry relatively little weight. Nonetheless, the prosecution still proposes to elicit this evidence from WP, and the applicant contends that the unavailability of the Brothers adds to the prejudice that he will suffer in defending this case, after all this time.
Paragraph (g) — weakness of the prosecution case
It was submitted that WP’s account of the various offences supposedly committed upon him by the applicant is unlikely to be accepted by a jury. Not only does that account suffer from a number of improbabilities, as well as vagueness and uncertainty, but it is also directly contradicted by the evidence of KK which, as it appears from the committal hearing, was firm and unequivocal.
As previously indicated, the fact that the prosecution proposes to call KK at the trial, and presumably to seek leave to cross‑examine him (pursuant to s 38 of the Evidence Act), is not, of itself, remarkable in a case of this kind. What is unusual is the direct conflict between WP’s account of events, and that of KK. Of course, the Crown would not be obliged to call KK if they regarded him as a witness whose evidence would be false. Yet, extraordinarily, that is not the Crown’s position. Rather, it seems that the prosecution simply seeks to put his evidence before a jury, with an invitation to reject what he says beyond reasonable doubt.
The differences between WP’s account, and that of KK, are stark. This is really a matter of black and white. KK is either telling the truth or perjuring himself in order to protect his brother. If the prosecution considers that, in accordance with its case theory, KK is lying, the Crown really has no business in calling him as a prosecution witness.
Paragraph (h) — ‘compounding prejudice’
It was submitted that even if none of the matters raised in paragraphs (a)–(g), considered in isolation, were sufficient to vitiate the exercise of her Honour’s discretion, when these were combined they resulted in an overwhelming case for a permanent stay.
Applicant’s additional oral submissions
Mr Thomson dealt at some length with the error that he had earlier identified in paragraph (a) of his summary of written contentions. In particular, he challenged the judge’s conclusion that the present case could appropriately be distinguished from the decision of this Court in R v FJL.[18]
[18](2014) 41 VR 572; [2014] VSCA 57 (‘FJL’).
In that case, the Director of Public Prosecutions brought an interlocutory appeal against an order permanently staying a trial involving 12 counts of indecent assault on two young girls, who were the accused’s step-daughters. Most of the offences were said to have been committed between 1976 and 1978, although one charge related to events alleged to have been committed in 1982.
The Director’s appeal succeeded, but not in relation to one count. It was only that single count that was held to have given rise to identifiable specific prejudice. The other counts could proceed to trial on the basis that a number of protective measures could be taken to guard against forensic disadvantage.
The one count which was held to have been correctly stayed involved conduct that was said to have occurred in a bedroom at the accused’s parents’ home. That bedroom was adjacent to that of the accused’s parents. The abuse was alleged to have taken place when others were present in the house. However, as a result of the lengthy delay, there was no longer any evidence available as to the layout, or even exact address, of the house in question.
Indeed, in FJL, there was no evidence that the police had made any attempt to locate the property, still less to inspect it. In these circumstances, it was held that the death of the accused’s parents gave rise to incurable prejudice, at least with respect to that one count. This was because the offending was said to have taken place while the complainant and her sister slept in a bedroom which was immediately adjacent to their grandparents’ bedroom, and would almost certainly have been overheard by them if it had occurred. In that sense, there are obvious parallels between this aspect of FJL and the present case.
In the present case, the judge sought to distinguish this Court’s analysis of count 1, in FJL, from the applicant’s complaint that his parents’ death gave rise to incurable prejudice. Mr Thomson submitted that her Honour’s purported distinction was highly problematic. As previously noted, she stated that although it was the defence case that there was no enclosed veranda at the farm, that of itself made FJL distinguishable. This was said to be because, in FJL, it was the complainant herself who said that the alleged offending took place in a room that was proximate to her grandparents’ bedroom, whereas in the present case, WP makes no such assertion.
In response to questions from the Court, Mr Thomson submitted that the judge’s analysis of the treatment of count 1 in FJL was deficient. She had approached the question of prejudice, and whether it was incurable, through the prism of WP’s version of events, rather than from the point of view of the defence case. That was said to be quite wrong, as a matter of principle.
The critical question, so far as the judge was concerned, ought to have been whether the fact that the applicant’s parents were no longer alive could be seen as so detrimental to the defence case, as postulated, that no significant forensic disadvantage direction could conceivably cure the problem. FJL did not speak directly to that issue. It could not be invoked by the judge as, in any way, providing support for her refusal to grant a permanent stay. If anything, FJL pointed strongly in the other direction.
It was submitted that another way of approaching the matter was simply to ask the core question: realistically, as a result of the delay in this case, what has the applicant lost? It was submitted that the answer was that he had lost a great deal.
With regard to the milking shed allegation, Mr Thomson submitted that DD’s death also resulted in irremediable prejudice to the applicant. That was because the evidence would, presumably, have been that DD was living at the farm at the time and that he was involved on a daily basis in the operations of the dairy, including the milking of the cows. He would have been in a perfect position to see whether any of WP’s claims as regards the milking shed (bearing in mind that WP said that he was molested there by the applicant on numerous occasions) could be borne out.
As for the hay shed allegations, Mr Thomson submitted that WP’s belated shift from speaking of a hay shed (which everyone understood to have been the hay shed on the parents’ farm) to an entirely different hay shed (on DD’s farm) was itself a cause for concern. Indeed, the fact that the police appeared to have made no attempt to investigate whether there ever had been a hay shed at DD’s farm, and if so, whether it was still there, added to the many disadvantages faced by the applicant in defending these allegations.
Mr Thomson then took the Court to a series of cases in which this Court had, in recent years, considered applications for a permanent stay. He referred, for example, to Morton, which we have previously discussed.
Mr Thomson noted, in particular, that the majority in Morton had cited with approval the following passage from the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor:[19]
The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, ‘what has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose.[20]
[19](1996) 186 CLR 541; [1996] HCA 25.
[20]Ibid 551 (citations omitted), cited in Morton [2020] VSCA 49, [134] (Beach and Kyrou JJA).
Mr Thomson invited this Court to approach the effect of the passage of time on memory in light of McHugh J’s cogent warning.
Mr Thomson then referred to Pound v The Queen.[21] There, this Court allowed an interlocutory appeal against a trial judge’s refusal to grant a permanent stay. The allegations involved four complainants, all of whom were residents of a children’s home. As in the present matter, the offences against those children were alleged to have taken place more than five decades previously, and were objectively very serious. Mr Thomson accepted that Pound could be distinguished, in some respects, from the present case. The applicant in that matter had profound cognitive deficits. For that reason alone, it was difficult to see how he could receive a fair trial. Nonetheless, the fact remained that this Court took the view that more than five decades was at the very upper end of presumptive prejudice.
[21][2019] VSCA 279 (‘Pound’).
Mr Thomson next referred to Green (a pseudonym) v The Queen.[22] The delay in that case was between about 44 and 52 years from the alleged offending to the commencement of the prosecution. The applicant’s parents were foster carers of the complainant, who lived with them for a period of about 13 years. Both parents had died by the time the trial was about to begin. As in the present case, the applicant in Green contended that they were both crucial witnesses whose death created irremediable prejudice to his defence.
[22][2017] VSCA 277 (‘Green’).
Green concerned some 22 counts of sexual and other related offences. A number involved conduct that was penetrative and were of the utmost objective gravity. Importantly, the complainant had made a number of allegations against the mother. Most of these were linked in various ways with the complainant’s allegations against the applicant. Indeed, the complainant claimed that the mother’s violence towards her constituted the immediate precursor to most of the applicant’s sexual offending. In the VAREs, the complainant explained her failure to make any contemporaneous complaint about the applicant’s conduct by reference to the mother’s history of violence and abuse towards her. She maintained that the mother was fully aware, at all times, of the applicant’s conduct.
Much the same could be said, in Green, of the importance of the applicant’s father to the defence case. Throughout the complainant’s evidence, she described him as a decent and kind person, who had never done anything wrong to her.
Basically, this Court took the view that it was most unlikely that the father would have been unaware of the various things said to have been done to the complainant, whether by the mother or the accused, had they taken place. These were not matters of ‘peripheral detail, but rather of some central importance to the outcome of the charges brought against the applicant.’[23] The fact that there may have been other persons still alive who might be in a position to give relevant evidence regarding some of these matters did not detract in any way from the overall disadvantage to the applicant of the unavailability of the foster parents.
[23]Ibid [85].
In essence, Mr Thomson submitted that Green demonstrated what ought to be obvious in any event, namely, that the evidence of a witness can be of central importance notwithstanding the fact that that witness was not physically present at the time that the alleged offending took place.
The respondent’s submissions
The respondent’s summary of written contentions
The respondent submitted that the judge’s decision to refuse a permanent stay was correct.
With regard to the applicant’s contention that her Honour’s discretion miscarried by reason of identified specific errors, the respondent argued as follows.
First, the judge did not fall into any specific error in distinguishing the present case from FJL. Count 1 in FJL had been permanently stayed because the evidence in that case made it clear that the alleged offending had taken place in a bedroom of a house that was contiguous with that occupied by the accused’s parents. It was in those circumstances that this Court held that the loss of the ability to call the parents to give evidence resulted in a probable forensic disadvantage to the accused that was incurable.
In the present case, the bedroom allegations that were the subject of charges 1, 2, and 4 all involved conduct that was said to have taken place behind the closed door of a room where WP slept. There was a dispute to be resolved by a jury as to whether there was an enclosed space on the veranda where WP slept, or whether, as the applicant and KK claimed, the boys’ bedroom was inside the house and in close proximity to that of the applicant’s parents. That, of itself, distinguished count 1 in FJL from the present case.
The respondent next submitted that even if the applicant’s parents had slept in a room contiguous to the bedroom where the offending was said to have taken place, that did not make them, in any relevant sense, central witnesses. What their evidence would have been, if they were still alive, was entirely a matter of conjecture.
The respondent said that the same could be said of DD in relation to the milking shed allegation. Whether or not he was ever in a position to see what was going on between the applicant and WP was entirely speculative. A significant forensic disadvantage warning, in accordance with s 39 of the Jury Directions Act, should be sufficient to overcome any prejudice arising from DD’s unavailability as a witness.
In relation to the alleged error on the part of the judge in characterising this offending as ‘inherently serious’, the respondent simply took issue with that submission. The offending involved a child aged between 13 and 14, who also happened to be particularly vulnerable at the time. The fact that there was no allegation of penetration, nor any suggestion of ejaculation, did not diminish the objective gravity of the offending.
Moving then from the series of specific errors identified, the respondent dealt with the submission that the judge failed to take certain matters into account. As indicated, those identified by the applicant included the delay of four years between the time that WP made his complaint to police, and what seems to have been the next step in the investigation when the applicant, KK, and MM were interviewed. It was submitted that the judge was plainly aware of the timeframe within which the various steps in the investigation had occurred. There was no reason why she should have been obliged to refer, specifically, to that four year delay in setting out her reasons for refusing a permanent stay. Her failure to do so could not vitiate the exercise of the discretion to refuse the stay as she did.
It was further submitted on behalf of the respondent that the applicant’s age, and the ages of KK and MM, were readily apparent. Again, there was no obligation on the part of the judge to mention these matters or indicate that they had been taken into account.
The same could be said of the failure to mention the fact that the Brothers to whom WP allegedly complained were no longer alive, or to discuss the supposed weakness of the prosecution case, which was not conceded. The applicant did not submit to the judge that these matters should be given particular weight.
Finally, the respondent submitted that although the delay in this case had been extreme, it was not such as to render it impossible for the applicant to receive an acceptably fair trial. There were no witnesses of critical importance who were unavailable to give evidence. Nor was the applicant himself unable, effectively, to challenge the prosecution case.
It was submitted that the factual disputes between the parties were capable of resolution by a jury. Importantly, there was a strong public interest in pursuing matters which involve sexual offending against children, no matter how long ago the offences were said to have occurred. Accordingly, so it was said, this proceeding should be determined by a jury, and not administratively.
The respondent’s oral submissions
In her oral submissions, Dr Rogers elaborated upon the written contentions that had been prepared on behalf of the respondent.
She noted that none of the three so‑called ‘central’ witnesses, the applicant’s parents and his brother, DD, had been eyewitnesses to the alleged offending. Indeed, she noted that by reason of his mental incapacity, DD might not have been able to give evidence at all, even had the charges been brought in the 1960s.
Dr Rogers noted that the applicant would still have the benefit, in any trial, of KK’s evidence, flatly contradicting much of WP’s account. When asked whether she accepted that the applicant would be prejudiced in his defence merely by virtue of the fact that KK, a critical witness, would no longer be as effective as if he had given his evidence 50 or so years ago, she acknowledged that there might be some force in that proposition.
Dr Rogers further conceded that, in her long experience in dealing with sexual offences against children, she had never come across a case quite like the present. She had not seen a case where a witness, who was to be called by the prosecution as a matter of fairness, would not simply damage the prosecution case but, if believed, would utterly destroy important aspects of it. More particularly, if the jury accepted as a reasonable possibility that KK’s evidence was true, that would leave an enormous hole in WP’s credibility.
Dr Rogers pointed out that there were many examples, in the prosecution of child sexual offences, of members of the accused’s family supporting the accused rather than the alleged victim. She acknowledged, however, that it would be rare that for a witness called by the prosecution to have had anything like KK’s central involvement in the circumstances surrounding the alleged offending. She also accepted that KK was not an obviously dishonest witness.
In answer to questions from the Court, Dr Rogers conceded that the judge had applied the wrong test in reaching her conclusion that the parents’ evidence was not central, but rather peripheral. Dr Rogers agreed that the judge appeared to have approached the issue on the basis of WP’s account of his having slept in an enclosed area, as part of the veranda. Instead, the significance of the missing evidence had to be assessed from the defence perspective, and the defence case was that the bedroom was inside.
That concession was clearly correct, in our view. As the authorities make clear, the focus of attention in relation to unavailable evidence must be the value of the lost opportunity — assessed from the perspective of the defence. The defence case here will be that the bedrooms were close together, such that the lost evidence of the parents (as to whether they heard any cries of pain as alleged) would have been of great significance. Viewed from that perspective, the present case is effectively indistinguishable from FJL. The parents’ evidence would have been central. It could not be regarded as merely peripheral.
Dr Rogers readily accepted that the alleged offending in this case was not as serious as that in a number of other cases where permanent stays had been granted. She noted, however, that the applicant had never applied for this matter to be heard summarily, although that course could have been adopted.
Dr Rogers was asked how it could reasonably be said that it was in the public interest for the trial of these charges to proceed after all these years. She submitted that it was of no consequence that the applicant might not, if convicted, receive a custodial sentence. She added that in her experience, some 60% of the work presently done by the Office of Public Prosecutions concerns sexual offences and that there were many cases involving considerable delay though, she conceded, not of this order. She described these cases as ‘vexing’.
Two further matters were raised by the Court. The first was whether the applicant’s age was a relevant factor, and one that told in favour of the granting of a stay. Dr Rogers agreed that the advanced age of an accused person was a relevant factor to be taken into account in the exercise of the discretion. The second was whether the prosecution would seek to call evidence from WP regarding the complaints he claimed to have made to the Brothers at the boys’ home. Dr Rogers confirmed that the prosecution would call that evidence despite the fact that the Brothers were now deceased.
Analysis
The law regarding the discretion to grant a permanent stay, based primarily upon delay, is well settled. The decision whether or not to grant such a stay is, as we have indicated, discretionary.[24] Deciding whether a trial will be ‘unacceptably unfair’ is, of course, a matter of judgment, informed by experience.
[24]FJL (2014) 41 VR 572, 578 [31] (Osborn JA, Redlich JA agreeing at 589 [90], Sifris AJA agreeing at 589 [92]), Morton [2020] VSCA 49, [5] (Maxwell P).
The test for the grant of a permanent stay is, rightly, exceptionally stringent. A court should only grant such a stay, in cases involving delay, in rare or exceptional circumstances. It must be shown that the continuation of the proceedings would involve unacceptable injustice or unfairness. Such unacceptable injustice, or unfairness, can result from ‘a probable forensic disadvantage which is incurable’.[25]
[25]FJL (2014) 41 VR 572, 580 [38] (Osborn JA, Redlich JA agreeing at 589 [90], Sifris AJA agreeing at 589 [92]), cited in Morton [2020] VSCA 49, [93] (Beach and Kyrou JJA).
In order to justify the extreme step of staying a prosecution, 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.[26] The accused must demonstrate that the delay is such that any trial would necessarily be unfair. Accordingly, any conviction would bring the administration of justice into disrepute.[27]
[26]Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46, 33–4 (Mason CJ), Hermanus v The Queen (2015) 44 VR 335; [2015] VSA 2, 341–2 [39] (Priest JA, Maxwell P agreeing at 336 [1]) (‘Hermanus’). Hermanus itself involved a delay of about 39 years, which would have been considered, at the time, to be at the extreme end of presumptive prejudice.
[27]Hermanus (2015) 44 VR 335, 342–3 [40] (Priest JA, Maxwell P agreeing at 336 [1]), cited with approval in Morton [2020] VSCA 49, [95] (Beach and Kyrou JJA).
Among the matters that a court should consider in determining an application for a stay are the length of the delay, the explanation provided by the prosecution for the delay, any role played by the accused in bringing about that delay, and the public interest in the disposition of charges involving serious offences. Only in rare and exceptional cases would a court be justified in refusing to exercise its jurisdiction.[28]
[28]Hermanus (2015) 44 VR 335, 342–3 [40] (Priest JA, Maxwell P agreeing at 336 [1]), cited with approval in Morton [2020] VSCA 49, [95] (Beach and Kyrou JJA).
Where, as in this case, the main argument in support of the grant of a permanent stay is the unavailability, by reason of the delay that has occurred, of important witnesses, it must be shown that their evidence, had it been available, would probably have materially assisted the defence case.[29] This flows from the requirement that the accused seeking such a stay demonstrate the probability, and not mere possibility, that the refusal to grant a stay would result in an unacceptably unfair trial.[30]
[29]Thus, in FJL, in relation to count 1, the accused’s parents’ bedroom was adjacent to the bedroom in which the alleged offending took place, and that was sufficient, in the circumstances of that case, to warrant a permanent stay on the particular count in issue.
[30]Hermanus (2015) 44 VR 335, 342–3 [40] (Priest JA, Maxwell P agreeing at 336 [1]), cited with approval in Morton [2020] VSCA 49, [95] (Beach and Kyrou JJA).
Of course, a trial judge may avoid some of the obstacles to a fair trial by evidentiary rulings and by appropriate directions to the jury which are designed to counteract any prejudice that the accused might otherwise suffer.[31]
[31]Hermanus (2015) 44 VR 335, 342–3 [40] (Priest JA, Maxwell P agreeing at 336 [1]), cited with approval in Morton [2020] VSCA 49, [95] (Beach and Kyrou JJA).
In Morton, to which we have referred at some length, there was no suggestion that the judge’s exercise of discretion in refusing a stay had been vitiated by specific error. Rather, the point which succeeded on appeal was that, in the circumstances, the refusal to grant a stay was not open to the judge, acting reasonably.
The position in the present case is quite different. The Crown has conceded, correctly, that the judge misdirected herself in assessing the significance of the unavailability of evidence from the applicant’s parents. Although this was not conceded, that error went to one of the critical issues raised by the stay application, and must, therefore, be regarded as vitiating her Honour’s exercise of discretion. It, therefore, falls to this Court to exercise the discretion afresh.
As we have already indicated, the evidence of the parents would have been of central importance. In that respect, this case is indistinguishable from FJL. Moreover, in our view, the parents’ presence in the house throughout the entire three year period of the alleged offending (1964–1966) means that they could have given important contextual evidence. The loss of such evidence was viewed by the majority in Morton as being of real significance to the defence.
The majority in that case (Beach and Kyrou JJA) observed:
… the death of a large number of witnesses, some of whom would have been in a position to give highly probative evidence that was capable of supporting the applicant, has deprived him of important means of defending himself. Coupled with the other sources of prejudice in the present case, the death of these witnesses renders it probable that a trial of the charges against the applicant would be unacceptably unfair.[32]
[32]Morton [2020] VSCA 49, [154] (Beach and Kyrou JJA).
Their Honours acknowledged the strong public interest in criminal charges being brought to trial. This public interest was particularly strong in cases involving sexual offences against children, who are often so traumatised by the offending that they do not report it until well into their adulthood. Notwithstanding these considerations, the majority concluded that the circumstances met the test of being ‘rare and exceptional’. They stated:
We are firmly of the view that the factors we have discussed would, in combination, render a trial of the applicant in respect of the nine charges so gravely unfair that any conviction would bring the administration of justice into disrepute. There is no public interest in criminal charges being the subject of such a trial.[33]
[33]Ibid [162] (Beach and Kyrou JJA).
It seems to us, with respect, that the argument in favour of the grant of a permanent stay in the present case is considerably stronger than that which was upheld by the majority in Morton. Unlike Morton, there is far less conjecture about what the applicant’s parents would have done in this case had their attention been drawn to the alleged offending. It is of significance that the applicant’s father was a retired police officer of many years’ reputable standing. He would have been unlikely to have ignored sexual offences being committed by his son upon WP, a child who was in his care and under his trust. Much the same could be said about the applicant’s mother.
There are other factors which, in our view, point strongly towards the need to grant a permanent stay in order to avoid an unacceptably unfair trial. The first is the lack of evidence concerning the hay shed allegations, including evidence of the very existence of such a structure and whether WP’s description of what took place there could possibly be right. The second is the additional four year delay in the investigation of WP’s original allegation.
Thirdly, the period of about 55 years that will have elapsed between the time of the commission of these alleged offences and any trial late next year must surely be at the outer end of what could credibly be regarded as acceptable in any criminal trial. The more serious the allegations of historical sexual offending, the less weight should be accorded to what is described as presumptive prejudice. Correspondingly, where the offending is serious but not at the upper end of the scale of offending, considerable weight should be given to the fact that more than 50 years will have elapsed should this matter come to trial.
Fourthly, the public interest in prosecution is not as strong a factor as in the case of more serious offending. We are not dealing with offences at the most horrendous end of the scale. This is not a case of murder, or anything remotely approaching criminality of that level. Serious as the allegations are, there is a need to maintain a sense of proportion. In this context, the age of the accused person is a relevant consideration, as senior counsel for the Crown properly conceded. The applicant is now 75. Justice requires that there be weighed in the balance the fact that he is approaching the final phase of his life.
Fifthly, the position of KK is of particular importance. Had KK given evidence in the 1960s, he would have been a young man whose memory of events would have been clear. The reliability of his recollection would not have been easy to impeach. Now, the prosecutor will be able to attack KK’s reliability on the basis that his memory of the events of more than 50 years ago will have diminished. Inevitably, the potency of his exculpatory evidence will be weakened. Realistically, no significant forensic disadvantage direction can adequately ameliorate the very real damage that will be done to the defence case merely by reason of the effluxion of time.
We are less convinced by the applicant’s submission that he will suffer irremediable damage because the Brothers are no longer available to give evidence regarding the supposed complaints made to them at the time. Rationally speaking, if properly explained to the jury, they will understand that in the absence of the Brothers, WP’s evidence as to having complained to them gains no support. In fact, there is a reasonable argument to say that the Crown should be prevented from eliciting such evidence from WP, except in response to a suggestion of recent fabrication.
We note that in Morton, the Court observed that the prosecution had eschewed any intent to lead evidence of contemporaneous complaints because the persons to whom they were supposedly made had since died. This was done in order to ameliorate some of the harm that was clearly brought about by the presumptive prejudice that was unavoidably present in that case.
Finally, we note that when this indictment was drafted, it was contemplated that there would be a single trial involving two complainants, WP and LW. Indeed, the prosecution sought to rely upon tendency reasoning, rendering their evidence cross-admissible. That is no longer the case. Once LW had died, and the prosecution was denied the use of his evidence as an exception to the hearsay rule, the case overall became very much weaker.
Conclusion
We are satisfied that, by reason of the combination of factors we have described, this is a case that should be regarded as ‘rare and exceptional’. There should be a permanent stay of these charges.
We would, therefore, grant leave to appeal, allow the appeal and order that the charges brought against the applicant be permanently stayed.
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Key Legal Topics
Areas of Law
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Criminal Law
Legal Concepts
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Appeal
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Interlocutory Orders
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Stay of Proceedings
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