P A v The Queen - [2012] VSCA 294

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0254
S APCR 2012 0266

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:

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.

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

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.

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.

We turn first to the interlocutory appeal.

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.

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.

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading P A v The Queen

Details

AGLC: P A v The Queen [2012] VSCA 294
Case: [2012] VSCA 294
Decision Date: 7 December 2012

CaseChat Overview and Summary

The case of P A v The Queen involved the appellant, P A, who was convicted of multiple serious criminal offences. The appellant challenged the decision of the trial judge to refuse a permanent stay of proceedings on the basis of a perceived pre-judgment and apprehended bias. The appeal was heard in the High Court of Australia. The appellant argued that the trial judge's interlocutory rulings indicated a pre-judgment, leading to a reasonable apprehension of bias. Additionally, the appellant claimed that the refusal to grant a permanent stay resulted in a significant delay and prevented the court from giving a Longman warning. The appellant also argued that the absence of eye movement desensitisation reprocessing therapy (EMDR) evidence would render the trial unfair.

The legal issues before the court included whether the trial judge's interlocutory rulings revealed a pre-judgment or created a reasonable apprehension of bias, the effect of the delay and the inability to give a Longman warning, and whether the absence of EMDR evidence would make the trial unfair. The court had to determine if the appellant's rights to a fair trial were violated due to these factors. The High Court of Australia found that the trial judge's rulings did not demonstrate a pre-judgment or create a reasonable apprehension of bias. The court held that the refusal of a permanent stay did not result in an unfair trial, nor did the inability to give a Longman warning prejudice the appellant. Furthermore, the court determined that the absence of EMDR evidence would not render the trial unfair.

The High Court of Australia dismissed the appeal, upholding the trial judge's decision. The court concluded that the appellant's rights to a fair trial were not compromised by the factors raised in the appeal. The interlocutory rulings did not indicate a pre-judgment or create a reasonable apprehension of bias, and the refusal of a permanent stay did not result in an unfair trial. Additionally, the inability to give a Longman warning did not prejudice the appellant, and the absence of EMDR evidence would not render the trial unfair. The decision of the trial judge was affirmed, and the appellant's convictions were upheld.

Orders