P A v The Queen

[2012] VSCA 294

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0254
S APCR 2012 0266

PA

v

THE QUEEN

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INTERLOCUTORY APPEALS
PURSUANT TO S 295(3) OF THE CRIMINAL PROCEDURE ACT 2009

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JUDGE:	BUCHANAN JA and WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 December 2012
DATE OF JUDGMENT:	7 December 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 294
RULINGS APPEALED FROM:	County Court of Victoria, Judge Sexton, 13 November 2012

CRIMINAL LAW – Interlocutory appeals – Rulings by trial judge did not disclose pre-judgment – No reasonable apprehension of bias – Refusal of permanent stay – Delay – Effect of inability to give a Longman warning – Eye movement desensitisation reprocessing therapy –  Missing evidence would not render the trial unfair.

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Gillespie-Jones with Ms E McKinnon	John V Hayes & Co Pty Ltd Lawyers
For the Crown	Mr A Grant with Ms D Karamicov	Mr C Hyland Solicitor for Public Prosecutions

BUCHANAN JA
WILLIAMS AJA:

1. The applicant was arraigned in the County Court and pleaded not guilty to an indictment containing three charges of gross indecency, four charges of indecent assault, one charge of sexual penetration of a child under the age of 10 years and one charge of sexual penetration of a child between 10 and 16 years. 

1. The complainants are sisters.  The offences are alleged to have occurred between 1982 and 1986. 

1. A jury is yet to be empanelled.  A large number of preliminary decisions have been made over the last year or so by Judge Sexton. 

1. There are two applications before the Court arising from those proceedings.  One is an interlocutory appeal against the decision of Judge Sexton refusing an application to recuse herself on the ground of apprehended bias.  The other is an application to review a refusal by Judge Sexton to certify that her decision refusing to permanently stay the proceedings was of sufficient importance to the trial to justify it being determined on an interlocutory appeal. 

1. We turn first to the interlocutory appeal.

1. On 13 November 2012, the judge delivered several rulings as to the admissibility of evidence.  The applicant contends that two of the rulings were made against the applicant without any application for the rulings by either Crown or the defence and without hearing any submissions on behalf of the parties.  Counsel for the applicant submits that by proceeding in this fashion, her Honour apparently pre‑judged the issues and thereby a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the conduct of the trial.

1. The applicant’s submission is not that these rulings were incorrect but that the circumstances in which they were made gives rise to a reasonable apprehension of bias. 

1. The first ruling was that evidence which the defence sought to lead should be excluded pursuant to the provisions of s 135 of the Evidence Act2008 because its probative value was substantially outweighed by the danger that the evidence might be unfairly prejudicial to one of the complainants and cause undue wasted time. 

1. The evidence sought to be led was that the complainant PL sought counselling before she made her first statement to the police.  The complainant denied there had been any counselling prior to her statement to the police. 

1. It was contended on behalf of the applicant that if there was counselling, that would damage the complainant’s credit and raise the possibility of pseudo memories causing the statement to the police.

1. The ruling was one of 14 rulings made by the trial judge in an effort to determine all disputes as to the admissibility of evidence before the trial commenced.  Pre‑trial argument took place over 24 sitting days.  Some 30 witnesses were called.

1. Transcript of the pre‑trial proceedings discloses that the prosecutor sought to exclude the evidence.  Her Honour made it clear to counsel for the applicant that she considered the evidence invited speculation because the content of the counselling was unknown.  Counsel for the applicant responded by making submissions at some length to justify the admission of the evidence.  The judge ruled on the question and excluded the evidence.  Some days later, her Honour entertained further submissions from counsel for the applicant.  After hearing those submissions, the judge altered her ruling and permitted the evidence of counselling to be led. 

1. In our opinion, there is no basis for the contention that the judge pre‑judged the issue or failed to accord the applicant natural justice.  While it may have been advisable to have precisely identified each of the issues as to the admissibility of evidence, nevertheless both the prosecutor and counsel for the applicant appeared to understand that the admissibility of the evidence that counselling occurred was in issue and directly addressed that question by submissions to the judge.

1. The fact that her Honour was prepared to entertain further submissions after making a ruling and was then prepared to revise the ruling, displayed an open rather than a closed mind. 

1. The second ruling said to give rise to an apprehension of bias was a ruling pursuant to s 136 of the Act, limiting cross‑examination of the complainant by permitting cross‑examination as to the existence of different accounts given by the complainant of the use of marijuana but excluding cross‑examination suggesting the complainant was attempting to influence the sentencing judge by the history she gave to a psychologist of her use of marijuana. 

1. Again the question was fully canvassed by submissions by the prosecutor and counsel for the applicant.  After the judge made her ruling, counsel for the applicant sought to revisit the question on two occasions.  Her Honour heard lengthy submissions on each occasion before confirming her ruling.

1. In our opinion, a fair‑minded lay observer would not reasonably apprehend the judge might not be impartial and unprejudiced.  Her Honour’s tolerance in entertaining repeated submissions, notwithstanding rulings, discloses undue persistence on the part of counsel rather than prejudgment on the part of the trial judge. 

1. We return to the stay application.

1. Her Honour had power to stay the proceedings against the applicant if satisfied that its continuation would be so unfairly and justifiably oppressive as to constitute an abuse of process.[1]    

   [1]Walton v Gardiner (1993) 177 CLR 378, 392 (Mason CJ, Deane and Dawson JJ).

1. The circumstances in which proceedings might constitute an abuse of process cannot be exhaustively defined.[2] 

   [2]R v Edwards (2009) 255 ALR 399, 406 (Hayne, Heydon, Crennan, Kieffel and Bell JJ).

1. The applicant sought a permanent stay of this proceeding on the grounds of oppression and delay. The judge refused his application and refused to certify that her decision was of sufficient importance to justify it being determined on an interlocutory appeal under s 295(3)(b) of the Criminal Procedure Act2009.  She reached that conclusion having determined that her decision was not attended by sufficient doubt to warrant its expedited review.[3]

   [3]Stannard v DPP [2010] VSCA 165, [27]; McDonald v DPP [2010] VSCA 45.

1. The applicant has applied for a review of the judge’s refusal to certify and also seeks the leave to appeal we may grant on such review under s 296(4)(b) of the Act. On a review, the Court is required by s 296(4)(a) to consider the question the judge addressed under s 295(3)(b). Leave to appeal may be given if a decision is considered sufficiently important to justify its determination on an interlocutory appeal and the Court is satisfied that it is in the interests of the justice to grant leave, having regard to the matters referred to in s 297(1) of the Act.

1. The applicant argues that the judge’s decision to refuse a permanent stay is attended by sufficient doubt to justify leave to appeal.  He submits that her Honour erred in concluding that the continuation of the proceeding would not amount to an abuse of process, given the delay and a number of other matters.

Delay

1. The applicant bases a number of his arguments upon delay.  He refers to her Honour’s description of delays using terms such as ‘unfortunate but not entirely unreasonable’, and, ‘again unfortunate and perhaps more unreasonable, even if understandable’ before going on to conclude that the ‘far from ideal’ eight-year period between the first report to police by the complainant PL and the laying of charges would not alone justify a stay.  (The judge noted that the application was not put on that basis.)

1. In an earlier decision in this proceeding, this Court ordered a retrial after the applicant’s successful conviction appeal notwithstanding the eight-year delay, although Ashley JA considered it a matter of concern.[4]  We see no reason to take a different view in relation to that period in the light of the further period which has elapsed since judgment was delivered in the appeal on 13 August 2010.

   [4]Papazoglou v R [2010] VSCA 201, [87], [95].

1. The matter was listed for retrial on 18 October 2010.  The retrial was adjourned and there were numerous interlocutory hearings in 2010, 2011 and 2012.  Many related to material such as medical and counselling records which might be regarded as relevant to the issue of the complainant PL’s reliability and credibility as a witness.  Treating practitioners and witnesses, including reporting experts, were called and examined. 

1. It would appear that the further time which elapsed before the retrial could occur was spent in preparation for that second trial.  We are satisfied that in all the circumstances the length of the total period of delay leading up to the retrial would not alone justify a permanent stay of the proceeding.

Longman warning 

1. The applicant relies upon delay in another way. He argues that he will not be able to have a fair trial because s 61 of the Crimes Act1958 prevents a Longman warning relating to delay being given to the jury.[5] 

   [5]Longman v R (1989) 168 CLR 79.

1. The judge rejected this argument on the basis that the absence of such a warning was not a relevant issue in the appeal and that such a warning could also not have been given in the first trial.  The judge acknowledged that the retrial might have a different focus but considered that directions, already accepted as appropriate by the prosecution, would be sufficient to deal with the issues in the trial.  Her Honour also referred specifically to the direction relating to the forensic disadvantage occasioned by delay which could be given only on application. 

1. Issues as to need for, appropriateness and effect of any jury direction can only be addressed in the context of an unfolding trial.  There is no substance to the applicant’s argument that the unavailability of a particular direction, which may or may not have been called for in any event, could play any part in the justification of a permanent stay in the proceeding.[6]

   [6]See New Zealand v Moloney (2006) FCR 250.

PL’s Evidence:  effect of EMDR

1. The applicant only discovered after the first trial that PL had undergone hypnotherapy and eye movement desensitisation reprocessing (‘EMDR’) therapy before that trial.  The prosecution had also been unaware of this treatment.

1. EMDR therapy is directed at separating the memory of a traumatic event from the emotions it might arouse.  There is some controversy as to its effects on memory and therapeutic benefit.

1. In R v Tillott,[7] the New South Wales Court of Criminal Appeal held that, although what might be described as ‘EMDR produced’ evidence was not inadmissible per se, certain guidelines or procedural safeguards should apply to the consideration of its admissibility.  Those procedural guidelines are just that.  They do not establish requirements to be met before the evidence is admissible.[8]  The judge retains a discretion as to whether the evidence should be admitted despite any failure to comply with them.

   [7](1995) 38 NSWLR 1.

   [8]Ibid, 2-3 (Grove J); R v KG [2001] NSWCCA 510.

1. Issues relating to the effects of PL’s EMDR treatment with regard to her memory and reliability and credibility were the subject of evidence and exploration during the interlocutory hearing in the period after the applicant’s successful appeal. 

1. In refusing to certify as requested, the judge referred to the applicant’s reliance on alleged non compliance with the Tillott guidelines in the stay application.  She correctly observed that they were not mandatory requirements.  She also correctly rejected the applicant’s criticism (repeated in this application) of her decision that the prosecution had not breached its obligation under the first of those guidelines by failing to advise the defence of PL’s EMDR therapy when it did not know of that treatment.  As far as any prejudice which might be said to have resulted from that failure was concerned, her Honour concluded that it would have been cured in any event by the opportunities afforded to explore the issue in the voir dire and other interlocutory hearings which had taken place.

1. The judge had previously refused to exclude the challenge to foreshadowed evidence from PL.  The applicant had argued that the evidence would be unreliable for a number of reasons, including the alleged possibility that PL’s memories may have been contaminated by counselling, EMDR and hypnosis.  Her Honour had correctly ruled that the assessment of reliability and credibility was pre-eminently a jury one.  She considered that PL’s evidence had probative value and that any danger of unfair prejudice could be cured by jury directions.  The issues relating to PL’s reliability and credibility as a prospective witness raised by the applicant before the judge in the stay application and again in this review, fall within the province of a jury.  The issues raised do not support a stay of the retrial.

Missing Evidence

1. The applicant also submitted that there were missing medical records relating to PL, the absence of which would justify a stay, alone or in combination with the other matters he raised.  The judge referred to the absence of evidence of the existence of any of the relevant records and, citing the High Court’s decision of R v Edwards,[9] concluded that it was: 

... not correct to characterise the loss of access to records which could possibly have existed as occasioning prejudice to the accused.

[9](1995) 255 ALR 399.

1. Even if, contrary to her Honour’s finding, there were relevant missing records, no injustice to the applicant would necessarily result.  As the High Court observed in Edwards: 

Trials involve the reconstruction of events and it happens on occasions that relevant material is not available.  Documents, recordings and other things may be lost or destroyed, witnesses may die.  The fact that the tribunal of fact is called upon to determine issues of fact on less than all the material which could relevantly bear upon the matter does not render the trial unfair.

1. What is to be made of the absence of records is properly a question for the jury.

1. The judge’s decision to refuse certification should be upheld.  Her decision was indeed not attended with sufficient doubt to justify its determination on an interlocutory appeal. We think in all the circumstances that it is premature to determine the questions raised by the applicant on such an appeal.

1. It follows that we will not grant leave to appeal from the interlocutory decision to refuse to order a permanent stay of the proceeding.

1. The orders of the Court will be as follows: 

1.        The application for leave to appeal in proceeding SAPCR 2012 0266 is dismissed.

2.        The application in proceeding SAPCR 2012 0254 for a review of refusal to certify that the decision in the Court below was of sufficient importance to the trial to justify it being determined on an interlocutory appeal is dismissed.

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