Parsons (a pseudonym) v Director of Public Prosecutions
[2020] VCC 1704
•20 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| SAMUEL PARSONS (A PSEUDONYM) |
| v |
| DIRECTOR OF PUBLIC PROSECUTIONS |
---
JUDGE: | Riddell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10, 11, 13 & 17 August 2020 | |
DATE OF RULING: | 20 August 2020 | |
CASE MAY BE CITED AS: | Parsons (a pseudonym) v DPP | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1704 | |
REASONS FOR RULING
---
Subject: Application for Permanent Stay of Proceedings
Catchwords: Re-trial --- Application for Permanent Stay --- Incontrovertibility --- Abuse of Process
Legislation Cited: Evidence Act 2008
Cases Cited:Dupas v R (2010) 241 CLR 237; R v Glennon (1992) 173 CLR 592; Clark v R [2016] VSCA 96; R v Kite (1992) 60 A Crim R 226; Walton v Gardiner (1993) 177 CLR 378; R v Carroll (2002) 213 CLR 635; Rogers v The Queen (1994) 181 CLR 251; R v Garth & Anor [2008] VSCA 252; Harlow v The Queen [2018] VSCA 234; Darren Brown v The Queen [2020] VSCA 26
Ruling: Permanent Stay Granted
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms J. Fallar | Office of Public Prosecution |
| For the Defence | Mr J. Fitzgerald with Mr M. Reardon | Victoria Legal Aid |
HER HONOUR:
Summary
1 Mr Samuel (Sam) Parsons[1] was tried by a jury in the County Court at Warrnambool in October 2019 on six charges of sexual offending against the complainant Gemma Loane.[2]
[1] Pseudonym used
[2] Pseudonym used
2 Ms Loane is the granddaughter of the accused’s partner. The indictment covers a period between 2002 and 2014 and the offending is said to have occurred when Ms Loane was aged between four and 12 years, and the accused between 61 and 69 years.
3 Charge 1 alleges sexual penetration of a child under 16 as a course of conduct. Charges 2-5 which included charges of indecent act with a child under 16, intentionally causing injury and sexual penetration of a child under 16 reflected one event, and Charge 6 which was a charge of sexual penetration of a child under 16 reflected a different event. Those two events were the only specific incidents the complainant was able to recall.
4 The accused denies the allegations. The issue at trial in relation to each charge was whether the jury could be satisfied beyond reasonable doubt that the events alleged occurred. Their satisfaction rested on the credibility and reliability of the complainant.
5 The jury returned verdicts of not guilty on Charges 2-6 but failed to reach a verdict on Charge 1.
6 The prosecution seek to retry Mr Parsons on Charge 1. They would do so while excising any reference to the evidence founding Charges 2-6.
7 The defence seek a permanent stay of Charge 1, arguing that a retrial would be an abuse of process in that it would be oppressive and unfair. They submit any retrial would offend the principle of incontrovertibility as it would relitigate the same series of events. Further, that in order to adequately challenge the credibility of the complainant, the defence would be forced to relitigate specifically the evidence the subject of Charges 2-6 thereby denying the accused the full benefit of his acquittals. They submit no evidentiary ruling or directions could cure the unfair prejudice to the accused.
8 The prosecution object to that application.
9 The issue is whether continuation of the proceedings would be unfair and oppressive amounting to an abuse of process, and thereby warrant a permanent stay of proceedings.
Summary of Allegations and Evidence
10 Before turning to the principles which govern permanent stay applications and to the arguments of the parties, it is necessary to recite some of the evidence and issues at the trial.
11 The accused and complainant resided in different dwellings on a dairy farm 45 minutes from Warrnambool. The complainant (born August 1998) lived with her parents (Alison[3] and Richard Loane[4]) and her younger brother, Joel[5] (born March 2002). The accused lived with the complainant’s uncle, Warren Loane[6] and her paternal grandmother, Margaret Loane.[7]
[3] Pseudonym used
[4] Pseudonym used
[5] Pseudonym used
[6] Pseudonym used
[7] Pseudonym used
12 The complainant’s father Richard, Warren Loane and another uncle all worked on the farm. The accused did not do farm work, but was the carer for Margaret Loane who has a myriad of health conditions.
13 The complainant would regularly visit her grandmother’s house and would stay overnight from time to time. She alleges that from the time she was approximately four years old until halfway through Grade 6, the accused would touch her sexually.
VARE and Statement
Charge 1
14 The complainant made a VARE on 31 March 2016. She made allegations which formed the basis of Charge 1. Those allegations include digital and penile penetration which is said to have occurred in four locations: at the computer in her grandmother’s house where the accused would rub her vagina with two fingers, including pulling the flaps of her vagina; on the kitchen table in her grandmother’s house where she alleged digital penetration and ‘sometimes’ penile penetration (often when her grandmother was in the shower); in the nearby shed on the bench where she alleged digital penetration and penile penetration and on a mattress in the shed where she alleged penile penetration; and during fishing trips to Port Campbell[8] where she alleged digital and penile penetration.
[8] Pseudonym used
15 The complainant alleged that the accused bribed her with money and would tell her not to tell anyone about what he was doing. She said the bribing stated when she was eight, nine or 10, with the accused sometimes giving her up to $120. She said her mother would query where the money came from.
Charge 6
16 In her VARE the complainant said she could recall one specific event which occurred in the shed and which became the foundation of Charge 6 – sexual penetration of a child under 16. She stated that the accused told her brother Joel to go back to the house and get a UHF handset radio as a way of ‘getting rid of Joel to then do something to me.’ She said he did that more than once, but on this specific occasion when Joel was sent to get the UHF, she said she was put on the bench, that the accused grabbed her ‘boobs’ and ‘with his teeth he was grabbing my flaps’. He then penetrated her vagina with his penis. She heard Joel returning on his motor bike and told the accused to stop, which he did. She said he did not ejaculate but that ‘he went back in the shed… he went and finished off… he’d come back out with the tissue full of what he’s ejaculated out.’ She said Joel was very young. (“UHF/teeth incident”)
17 At committal the complainant denied that the accused touched her breasts, and did not mention using teeth. She described that event as involving digital penetration. Therefore the indictment at trial in relation to the UHF/teeth incident involved a single charge of sexual penetration, particularised as introduction by the accused of his finger into her vagina.
Charges 2 - 5
18 Three months after making her VARE, the complainant made a written statement. In it she described another distinct event which formed the basis of Charges 2 to 5. That event was alleged to have occurred in the shed between 2007 and 2009. The complainant alleged that when she was in Grade 3 or 4 the accused took her to the shed and put her on the bench. She alleged that the accused pulled down her pants (Charge 2 indecent act with the child under 16) and that he used a multigrip tool (like pliers) to grab the flaps of her vagina ‘and it ripped my skin and bled a little bit near my vagina.’ She realised her vagina had been ripped when she later had a shower and her vagina stung. (Charge 3, causing injury intentionally). She said the accused then put his penis into her vagina (Charge 5 sexual penetration of a child under 16). She stated ‘after he finished I pulled my pants back on and went back up to nan at the house.’ (“multigrip incident”)
19 Charge 4 indecent act with a child (by way of touching the complainant’s breasts) was laid based on evidence given by the complainant at the committal. She did not repeat that evidence at trial and after a no case submission the learned trial judge directed an acquittal on Charge 4.
20 In her written statement the complainant said that after talking to police ‘a few years ago’ her mother looked at her vagina but said it had healed. Her mother’s evidence at trial did not support this evidence. The complainant said in her statement that she had never seen a doctor about injury to her vagina.
Complaint evidence
21 The complainant in her statement said she first told a school counsellor about the injury to her vagina, and that ‘soon after I told the counsellor’ she spoke with the informant about what happened with the accused. By reference to other evidence that complaint occurred in April 2013.
22 In her statement the complainant said that ‘soon after that I said that it didn’t happen.’ She said she retracted that complaint because she was ‘freaking out’ about what was going to happen to her and to her family. She said when making her VARE she did not mention the multigrip incident due to stress.
23 The events the subject of Charges 2-5 and Charge 6 were the only specific incidents the complainant was able to recall.
Pre-Text call and Record of Interview of Accused
24 The complainant conducted a pre-text call with the accused in which he denied any allegation of sexual impropriety.
25 The accused was interviewed on 26 July 2016 and denied the allegations.
Evidence at Trial
Evidence in Chief
26 The complainant’s VARE was used as her evidence in chief in relation to Charge 1 and Charge 6. She was examined in chief in front of the jury regarding Charges 2-5.
27 In her evidence in chief she said the multigrip incident occurred when she was about 5 years old. She said she and the accused and her brother were making sinkers in the shed. Joel was one to two years old. She said Joel was sent by the accused to the house to get his UHF. He rode a four wheeler motorbike to the house.
28 She described the accused attaching the multigrip tool to her right vaginal ‘flap’, then squeezing the handles together, and that it felt like ‘someone was ripping a layer of your outer skin back’ and that he was pulling it back towards himself for a few seconds. He removed the multigrip and then inserted his penis into her vagina. The complainant said not very long after, Joel returned and the accused removed his penis and pulled up his pants. He lifted her from the bench and then left the shed ‘to stop Joel coming into the shed’. She said she then went out to where Joel and the accused were and they returned to making sinkers.
29 The complainant said in the shower she had stinging and observed a little bit of blood. The stinging continued for a few days.
30 The complainant gave evidence that she first disclosed ‘that Sam raped me when I was three’ or four to a school counsellor, Madison Chouinard,[9] in 2013. DHHS and CASA became involved and soon after, the police.
Cross-Examination
Challenge to Charge 1
[9] A pseudonym.
31 In cross examination at trial the complainant described the accused’s role as her grandmother’s carer including the fact that he would drive her, push her wheelchair and assist her with showering. During showering the bathroom door would be left open. She agreed her grandmother’s showers were quite short and that the accused needed to be nearby.
32 The complainant agreed that the accused was not adept at using the computer but said he would go on eBay. She said the bribery with money commenced ‘when it all first started’. She said the accused would threaten her if she did not do what he wanted her to do and confirmed that in the VARE recording she said he would hit her ‘backhanders’ at around the time she decided to stop the abuse happening (despite saying she did not recall this when she gave evidence at the committal in June 2018).
33 The complainant gave evidence that she would stay overnight once a month when she was five or six. The complainant confirmed her father and uncles would be in the vicinity of the shed and the house during the day.
34 In relation to Port Campbell, she denied that her grandmother would be able to see her and the accused from the car. She confirmed her VARE evidence namely that she stopped going fishing alone with the accused from about the age of five and a half and thereafter always went with Joel.
35 She said she was bribed by the accused to go fishing with him before she was five and a half years old. Later she said she was not bribed with money until she was older; in the younger years bribes involved getting food or a show bag. She confirmed her evidence at the committal namely that she went to Port Campbell when she was six or seven years old.
36 The complainant confirmed that when asked by DHHS whether she had been abused while fishing, she had said no.
37 A note from a DHHS worker made in November 2013 was put to the complainant. The worker recorded her as saying ‘Sam stopped abusing me sexually when I was about six years old.’ The complainant refuted this.
Challenge to Charge 6
38 The complainant confirmed evidence that Joel was sent to get a UHF on the occasion of the multigroup incident. There was an issue as to whether she had conflated the multigrip incident with the UHF/teeth incident. She confirmed that in her written statement about the multigrip incident she had not mentioned Joel being present before or after or being sent to get a UHF radio. Under further cross-examination, the complainant accepted that in her VARE and at committal she had stated she could only recall one specific time where Joel was sent to get a UHF radio (the UHF/teeth incident).
39 Further, the complainant confirmed her evidence at committal that she had said that on the UHF/teeth incident the accused had used his fingers (only) to penetrate her. She confirmed her evidence given at the committal to this effect: “Did anything else happen other than Sam touching your vagina with his hand on this day? Answer: ‘No.’ … Question: ‘So the only thing that happened was Sam touched your vagina… and put his finger into your vagina… He didn’t touch you anywhere else…. He didn’t put his penis inside of you?' … No.’”
40 In re-examination the versions from her VARE and committal on this matter were put to the complainant and she confirmed the accused penetrated her with his penis, as per her VARE. The indictment was amended so that penetration in Charge 6 was particularised as penile penetration.
Challenge to Charges 2-5 – Injury to Vagina
41 The complainant agreed that she had first told a DHHS worker in April 2013 that the accused sexually assaulted her when she was four or five years old, and that this involved taking her to the shed, removing her clothes, touching her vagina, and at times removing his clothes, and that on one occasion he had cut her vagina and ‘that you were unable to recall how it happened, whether it was via penetration or by a sharp object’.
42 The complainant confirmed that in October 2013 she told a CASA counsellor that Sam had said to her ‘You’ll never get a boyfriend because I sliced you,’ and that this related to the accused cutting her vagina with a Stanley knife. Further, that she told the counsellor that she was bleeding but never sought medical attention but that she was reminded of it every time she goes to the toilet because ‘you can feel the cut skin.’ She accepted that she had said nothing about a multigrip tool or about her vagina being grabbed or pulled or stretched.
43 She confirmed that as at April 2013 she was unsure whether the cut was caused by penetration or an object, but by October 2013 she had said it was caused by a Stanley knife.
44 The complainant confirmed declining a medical examination when asked by the informant. When challenged about whether there was an injury to her vagina she stated “I did have a tear. I live with it every day, I know what’s on my body.” She also confirmed that she did not want her doctor (Dr Griffiths) to look at her vagina as he is male.
45 The complainant then confirmed that in November 2013 she spoke with DHHS worker Olga Vasilenko. A note from Ms Vasilenko which recorded the complainant stating to her that ‘Sam cut me down there’ and that she had seen Dr Griffiths ‘and he’s advised you you can get a vaginal reconstruction’ was put to the complainant. She stated that she could not recall making those comments. The complainant confirmed telling Ms Vasilenko that her mother had looked at her vagina and seen ‘the scars’.
46 Ms Vasilenko’s note was ultimately accepted as accurate by the prosecution and the contents were led in evidence through the informant.
47 In 2014 the complainant and her mother attended the police station to speak to the informant. The complainant’s mother, in the presence of the complainant, told the informant that ‘Gemma had confessed to making up the part about having your vagina cut and that your mother had looked at your genital area and it was normal’ and the complainant’s mother explained that ‘when you get angry you embellish or add things.’ The complainant agreed that on that occasion nothing was said about a multigrip tool.
48 The complainant confirmed her 2018 committal evidence on this topic to the effect that she was asked whether she had told lies, and that she agreed ‘To start with, I freaked out and there was a few lies, but I went back and corrected myself on them.’ In relation to the Stanley knife she said she told lies about it ‘because he had it there and I was unsure on whether he used it or not.’
49 The complainant when challenged about the state of her vagina said, “There is damage down there… Anyone that has looked at my vagina since then knows that it’s not normal. I’ve had ultrasounds and everything else and they know it’s not normal… they know there’s damage and I have no feeling in part of my ---" When asked whether she had told police about the ultrasounds, she stated “I’ve had an ultrasound last week.”
50 In re-examination the complainant was asked about the recent ultrasound and about her reported lack of feeling. She stated “In the right cheek… you can touch it or whatever, there’s no feeling there. It’s stretched.”
51 No evidence was produced of any medical examination of the complainant’s vagina. It later emerged that the Prosecution was aware that the ultrasound conducted in the previous week was in relation to pregnancy and not to any injury. This was not disclosed to the defence until closing addresses.[10]
Amendment of Indictment
[10] This non-disclosure was part of the permanent stay application. Given the findings I have made, it has been unnecessary to specifically address this aspect of the argument.
52 Leave was granted for the prosecution to amend the indictment in relation Charges 2-6 by changing the dates from between 2007-2009 (reflective of the complainant’s statement and or evidence at committal) to between 2002-2004 (reflective of her evidence at trial).
53 Leave was granted for the prosecution to amend the indictment to change digital penetration to penile penetration in Charge 6.
Verdicts
54 The jury by majority verdict returned verdicts of not guilty on Charges 2-6. Despite being offered a majority verdict on Charge 1 they were discharged having been unable to reach a verdict.
Proposed Retrial
55 The Prosecution has amended both its indictment and summary of opening to reflect only those allegations covered by Charge 1. The prosecution have indicated they do not propose to adduce any evidence relating to Charges 2 to 6, at a retrial.
56 The defence response remains unchanged. The accused denies all sexual allegations. The credibility of the complainant is central.
57 The facts in issue remain whether a jury could be satisfied of events founding Charge 1, noting that Charge 1 is a course of conduct charge and therefore the jury need only be satisfied that there was penetration of the complainant on more than one occasion during the period covered by that charge (2002-2014[11]) and that the incidents taken together amount to a course of conduct having regard to their time, place or purpose and any other relevant matter.
[11] Noting the end date of the charged period is beyond the time of first complaint and involvement of police.
Principles regarding a Permanent Stay of Proceedings
58 Exercising a power to stay proceedings is an exceptional and rare step, often referred to as a last resort. A court may only grant a permanent stay where there is a fundamental defect that goes to the root of the trial and which is of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences.[12] The test has been otherwise expressed as whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness.[13]
[12] Dupas v R (2010) 241 CLR 237; R v Glennon (1992) 173 CLR 592; Clark v R [2016] VSCA 96; R v Kite (1992) 60 A Crim R 226
[13] Walton v Gardiner (1993) 177 CLR 378 at 392
59 In an application for a permanent stay in a criminal matter critical factors to consider include the recognition that certain conduct is classified as criminal and persons responsible for such conduct are to be prosecuted and appropriately punished; the imbalance of power between prosecution and the accused; the seriousness for an accused of a conviction; and the importance of finality. Those are each important values to which the criminal law gives effect, but which pull in opposite directions.[14]
[14] R v Carroll (2002) 213 CLR 635 per Gleeson CJ and Hayne J at p.644
60 Sexual offending against children is extremely serious offending. It is the type of offending which has been said to strike at the heart of a civilised society. The ramifications for victims are usually immediate and often long lasting. In the context of a family setting the effects tend to be felt not only by the direct victim but by those connected to him or her. It has the capacity to cause family breakdown. Prosecution of those responsible for such conduct is not only warranted but crucial.
61 The allegations in this case are grave examples of that serious offending. They involve a significant breach of trust. They involve a very young child and they involve repeated penetrative events over a significant period of time. They involve allegations of buying the victim’s silence and of physical violence. There is no issue taken with the proposition that prosecution for such offending is warranted.
62 In a criminal proceeding there does not need to be mala fides on the part of the prosecution before a permanent stay may be granted. None was suggested here.
63 While the power to grant a stay is a discretionary decision, the discretion only relates to determining whether there is an abuse of process. A court cannot grant a stay without finding an abuse of process and it cannot refuse to grant a stay after finding an abuse of process that cannot be cured by other means.[15]
[15] ibid per Gaudron and Gummow JJ
64 The categories of unfairness which amount to an abuse of process are not closed. The nature and manner in which a prosecution may be unfair or oppressive as an abuse of process is not confined but is broad.[16] One such category relates to multiplicity of proceedings. There are two general categories of cases where a multiplicity of proceedings will be an abuse of process: first where subsequent proceedings require the accused to re-litigate the same issues as in an earlier proceeding; and second where proceedings may be a collateral attack on an earlier decision.[17] One form of multiplicity of proceedings which arises in criminal trials is where a re-trial is sought after an earlier trial results in a jury being discharged without verdict.[18]
[16] See for example R v Garth & Anor [2008] VSCA 252 at para 21
[17] R v Garth & Anor [2008] VSCA 252; R v Kite (1992) 60 A Crim R 226; R v Carroll (2002) 213 CLR 635
[18] Clark v R [2016] VSCA 96
65 Re-litigation of decided issues in subsequent criminal proceedings increases the risk of conflicting decisions. It may erode public confidence in the administration of justice, and have the capacity to breach the principle that judicial determinations are incontrovertible – that is, final, binding and conclusive.
Defence Application
Incontrovertibility
66 Mr Reardon and Mr Fitzgerald on behalf of the accused here submit that the basis for the application rests largely on the principle of incontrovertibility. That principle recognises the need for decisions of the courts, unless set aside or quashed, to be incontrovertibly correct.[19] They submit that a retrial on Charge 1 will necessarily reopen the allegations for which the accused has been acquitted, namely Charges 2-6.
[19] Rogers v The Queen (1994) 181 CLR 251 at 273
67 Those charges reflected specific events whereas Charge 1 is general in nature. They submit it would be artificial and unfair for the Crown to now omit from evidence those specific occasions and leave a different narrative before the jury.
68 They submit that to run a proper defence in a re-trial of Charge 1, proof of which rests solely on the credibility of the complainant, they would have no choice but to re-litigate what were the strongest credit points in the original trial. Those were the proven inconsistencies in relation to the multigrip incident, and the UHF/teeth incident, as well as the apparent conflation between those two events founding Charges 2-6. They would thereby be forced to reintroduce allegations of which the accused has already been acquitted.
Admissibility of Evidence and Forensic Choice concerning Charges 2-6
69 The case law in relation to incontrovertibility is almost entirely concerned with unfairness occasioned by the prosecution seeking to reintroduce evidence which relates to the acquittal of the accused on another charge or charges. This situation is obviously different in that the defence would seek to introduce that material.
70 Ms Fallar for the prosecution submitted that any attempt by defence to reintroduce that evidence would be objected to pursuant to s.55 of the Evidence Act 2008, namely on the grounds of relevance.
71 Section 55(2)(a) makes clear that evidence is not taken to be irrelevant only because it relates to credibility of a witness. In my view the evidence touching on Charges 2-6 and specifically the inconsistencies therein could rationally affect the jury’s assessment of a fact in issue, namely whether the alleged events occurred. Given the close relationship between those allegations and the allegations covered by Charge 1, and the nature of credibility generally, in my view that evidence would be admissible.
72 The prosecution next submit that re-introduction of those matters is a forensic decision for defence, who must then bear any negative consequences. Defence counsel submit that although superficially this looks like a forensic decision, in reality it is not a choice at all – but an illusion, a Hobson’s choice[20].
[20] cross examination of the complainant at trial focussed largely on the evidence concerning Charges 2-6. That was likely so for two reasons. First, the difficulty for an accused when faced with a course of conduct charge covering many years and with only general detail; and second, the fact that specific challenges could be made to the inconsistent versions given by the complainant of the events underpinning Charges 2-6, supported by a documented history from independent witnesses narrating those changes.
74 While there is no suggestion that Charge 1 is improper[21], the legitimacy of such a charge does not detract from the difficulty of defending it. A course of conduct charge usually covers allegations that are broad and lacking in specificity. In this case Charge 1 covers a period of 12 years, allegations in four separate locations, and both digital and penile penetration. The cross examination in relation to Charge 1 centred on attacking improbability (ie. other people in the vicinity), difficulties with dates and ages, contradictions regarding whether Joel was present during fishing trips, and different accounts of being bribed. The prosecutor in argument before me accepted that the challenge made to the complainant in relation to Charges 2-6 was able to be a more powerful one than in relation to Charge 1.
[21] Harlow v The Queen [2018] VSCA 234
75 The solid principle behind course of conduct charges does not remove consideration by me in the exercise of my discretion as to how the nature of that charge would impact the trial. The ‘choice’ for defence is stark being either a bald denial or a focussed attack on credibility through proven inconsistencies.
76 In the circumstances of this case I accept the defence submission that in order to properly defend the accused they must seek to reintroduce the evidence regarding Charges 2-6 by cross-examining the complainant on those matters.
Double Jeopardy, Autrefois Acquit and Plea in Bar considerations
77 Once introduced, the evidence regarding Charges 2-6 will tend to undermine the acquittals. That will be immediately apparent as the complainant will doubtless maintain the truth of those allegations. Defence counsel concede that this is not a double jeopardy situation, or a scenario where the accused can call in aid a plea in bar. However, the case law which considers abuse of process resting on arguments around incontrovertibility demonstrates that its application is broader than the strict terms of those concepts. Comments by members of the High Court in R v Carroll[22] bear that out.
[22] R v Carroll (2002) 213 CLR 635
78 Gleeson CJ and Hayne J found the principle of incontrovertibility as it applied in an application for a permanent stay to be a broader principle than one of preclusion, or of autrefois acquit or double jeopardy. Their Honours stated “On examination… the principle may be thought to find its origins in rather broader and less precise notions than those which have been developed in the rules of preclusion.”[23]
[23] ibid at p.648
79 Their Honours referred to Garrett v The Queen[24] where Chief Justice Barwick in considering incontrovertibility of an earlier verdict stated, “The relevant principle is that the acquittal may not be questioned or called in question by any evidence which if accepted, would overturn or tend to overturn the verdict. That the applicant was not guilty of the former charge because acquitted of it is a matter which passed into judgement: it is res judicata.” Their Honours in Carroll stated that reference to ‘calling in question’ and ‘tending to overturn’ gave the principal greater width.
[24] Garratt v The Queen (1977) 139 CLR 437 at p.445 with emphasis added by their Honours in Carroll; and see Gaudron and Gummow JJ at p.660-661
80 There Honours then referred to Connelly v the Director of Public Prosecutions[25] quoting Lord Pearce who stated,
A man ought not to be tried for a second offence which is manifestly inconsistent on the facts with either a previous conviction or a previous acquittal. And it is clear that the formal pleas which a defendant can claim as of right will not cover all such cases. Instead of attempting to enlarge the pleas beyond their proper scope, it is better that the courts should apply to such cases and avowed judicial discretion based on the broader principles which underlie the pleas.
[25] Connelly v DPP [1964] AC 1254
81 Gleeson CJ and Hayne J themselves concluded,
There are cases where a charge of an offence would be manifestly inconsistent on the facts with a previous acquittal, even though no plea of autrefois acquit is available. Since, in most cases of trial by jury, it will not be known why the accused was acquitted, and in many cases the reason may simply be that the jury had a doubt about whether the prosecution had established some element of the offence, the inconsistency, if it exists, will appear from a comparison of the elements of the new charge with the verdict of not guilty of the previous charge, understood in the light of the issues at the first trial.[26]
[26] Carroll at p.649
82 The facts in Carroll raised a clear and direct inconsistency between the earlier acquittal for murder and the subsequent charge of perjury. Their Honours Gleeson CJ and Hayne J stated that they would not confine the situations where the principle of incontrovertibility could apply. To that end and without deciding it, they said
… it may be accepted that there may be cases where a second prosecution is argued to be oppressive and an abuse of process, even though there is no direct inconsistency between the new charge and the earlier verdict. The circumstances that may constitute oppression or an abuse of process are various. The discretionary considerations that may be relevant in dealing with them cannot be rigidly confined.[27]
[27] Carroll at p. 650-651
83 McHugh J in a single judgment in Carroll referred to double jeopardy and the fact that to be enlivened it needed to rely on same offence, but said –
Yet if the prosecution can bring further and different charges arising out of facts all or many of which were before the court in an earlier prosecution, the accused is as effectively harassed as if he was being tried again on the same charge. Similarly, if other proceedings could be brought that had the tendency to contradict or undermine the effect of an acquittal, an acquitted person might effectively lose the benefit of the acquittal and the full protection of the double jeopardy principle. Plainly, the formal pleas of autrefois convict or autrefois acquit were inadequate to give effect to the full rationale of the double jeopardy rule and the policy behind it in some cases where the prosecution brought successive proceedings against an accused person. ... They do not protect the accused against prosecutorial harassment in many cases that, in substance but not in form, offend the double jeopardy principle.[28]
[28] Carroll at p.673
84 Hence as His Honour described, the existence of other ‘weapons in the judicial armoury’ to protect the accused, namely the power to stay proceedings which are considered an abuse of process.[29]
[29] P.673
85 In the case of Mr Parsons the issues in the first trial on all charges were identical – whether the jury could be satisfied beyond reasonable doubt that the alleged events occurred. Charges 2 to 6 were specific examples of the broader allegations. Those issues would be traversed again in any retrial with the distinct reality that such evidence, including the maintenance of the truth of allegations founding Charges 2-6, would undermine or at least tend to undermine the acquittals. In my view this is a case where, although remedies of preclusion do not strictly apply, the broad application of those concepts as described in the case law in line with the principle of incontrovertibility, enlivens the court’s discretion to find that a retrial would be an abuse of process as unfair and oppressive.
Evidentiary Rulings and Directions
86 Before granting a stay of proceedings however, consideration must be given to any procedural steps which could cure any unfair prejudice or injustice. Those include evidentiary rulings as well as directions to the jury.
87 It is clear that the jury would need to be given directions. Defence counsel submit and I accept that the accused would suffer unfair prejudice if no direction was provided to the jury about the cross examination on the multigrip incident or UHF/teeth incident. Those serious allegations are likely to cause a visceral reaction in most jurors and there would be a real risk of negative speculation. They would likely wonder why those allegations are not the subject of a charge on the indictment; they may wonder if those events are prior convictions; or whether there has been a trial on those charges and if so what occurred. They may also wonder about the previous trial on Charge 1. Ms Fallar, in argument before me, accepted these risks are real.[30]
[30] T 113
88 The jury would need to be given direction as to how they may use that evidence as relevant to the complainant’s credit. Given the complainant would maintain those allegations, but must not have been accepted by the first jury, how would a subsequent jury marry those conflicts? They would also need to be directed as to how they may not use the evidence. That would ordinarily be via an anti-propensity warning as suggested by the prosecutor. However that misses the point that far from proving a propensity, the accused is innocent of those allegations. It is immediately apparent that any directions are likely to be complex and difficult for even the most diligent juror to apply.
89 The prosecution indicated they would not object to the jury being told of the verdicts of acquittal in the previous trial.[31] That is despite the existence of s.91 of the Evidence Act 2008.
[31] T 136
90 The question then arises, what directions could be given to the jury as to the previous acquittals? The prosecutor suggested they should be told that those simply mean the previous jury were not satisfied and the verdict ‘doesn’t mean he didn’t do it’.[32] That is a remarkable submission in the face of the case law and focus of argument on incontrovertibility. If told of the acquittals, the accused must be given the full benefit of that verdict. Murphy J in Garrett stated a verdict of not guilty is “not equivalent to a verdict of not proven, and the trial judge’s direction that Mr Garrett’s acquittal was a neutral circumstance was erroneous. The person who has been acquitted of the charge is entitled in any later proceedings between the government and himself to be regarded as innocent of that charge.”[33]
[32] T 118
[33] Garrett at p. 447
91 Beyond that submission the prosecutor offered no other suggestions[34] of directions which could address unfair prejudice. Defence counsel say that is because there are no directions which could effectively remedy this situation.
[34] Beyond anti-propensity
92 The Court of Appeal in the recent decision of Darren Brown v The Queen[35] although dealing with an appeal against conviction, traversed similar issues. In that matter, the appellant faced an indictment containing five charges which reflected two occasions where he was alleged to have assaulted his de facto partner. He was found guilty of Charge 4, reflecting part of the second incident, but acquitted of the other charges.
[35] Darren Brown v The Queen [2020] VSCA 26
93 The appeal against conviction succeeded on the basis of fresh evidence namely a description by the complainant of one of the incidents which differed in a material respect
.[36]
[36] Ibid at para 17
94 Relevant to my consideration is the question which the Court then faced, namely whether to order a new trial or enter a verdict of acquittal. In exercising their discretion, the Court was required to consider a number of factors which overlap with those I must consider and which inform the interests of justice, in particular the public interest in prosecution of offenders and desirability of having guilt or innocence decided by a jury, and whether a retrial would be unduly oppressive to the accused.[37] In particular the Court was required to examine the forensic challenges of any retrial, and specifically the fact of the acquittals.
[37] Ibid at para 24
95 In determining that a retrial would be unfair and that a judgment of acquittal should be ordered, their Honours noted that on any retrial the credibility of the complainant would again be central. They stated, “The applicant would be placed in a very difficult position. He could expose inconsistencies or infirmities in the complainant’s account in relation to the first incident and [the second incident] but only by putting the facts surrounding those matters before the jury.”
96 The prosecution could not introduce the facts relating to the charges where acquittal was entered, without agreement from defence. Their Honours noted in that regard “…the applicant would be placed in the invidious position of using that account as evidence of the complainant’s exaggeration, but only at the expense of adducing evidence of another alleged assault in respect of which the jury had acquitted him. Even if evidence of the acquittal…was admitted, and the prosecution was foreclosed from traversing the acquittal, that evidence would be problematic for the applicant: it would put uncharged acts before the jury; directions concerning the use of the acquittal would be complex; and the jury might also be tempted to speculate that perhaps the applicant had been previously found guilty of Charge 4.”[38]
[38] Ibid at para 34
97 Their Honours noted the close relationship between the charges and found that on any retrial the applicant would be compromised in his defence. Further, they stated “It may be commonplace for an accused to have to decide whether or not to attack a witness’ credibility by introducing uncharged acts, but here those acts were the subject of charges that resulted in acquittals.”[39]
[39] Ibid at para 35
98 Their Honours referred to s.91 of the Evidence Act 2008 noting that “…even allowing that evidence of the acquittals might be admissible and the applicant should be entitled to the ‘full benefit’ of that evidence, in the circumstances of this case the introduction of [the evidence around Charge 3] carries significant risk for the applicant and, as noted, any direction given by the trial judge would draw attention to the evidence and introduce complexity in the trial.”[40]
[40] Ibid at para 36
99 Many of those statements are applicable here. True it is the charge here is of a grave example of a more serious offence. It is also true that the accused could seek to challenge the complainant’s evidence on Charge 1 via a number of broad attacks. However many of those are to issues which are peripheral. On a retrial he would lose what was the most compelling attack on her credibility via the specific charges. As counsel submitted, the fact there are other weaknesses in the Crown case does not detract from the argument.
100 I agree with defence counsel that the likely prejudice occasioned by reintroduction of the multigrip and UHF/teeth incidents here is more acute than the situation in Brown; applying a tool to the vagina of a five year old girl and causing her injury, as well as gripping her vagina with teeth, both prior to penile penetration, lend a particular gravity to those allegations. The defence would therefore be forced to reintroduce allegations which are more serious and disturbing than those found in Charge 1. The risk of unfair prejudice is real.
101 Given the jury will be told they may be satisfied of the course of conduct charge on any of the alleged events said to have occurred during the charge period, they may impermissibly use the specific allegations of Charges 2-6 to reach that satisfaction.
102 If told of the previous acquittals, even with directions that they should not speculate about those matters, a jury may do so. Directions are likely to be complex and it may be ambitious to hope a jury could and would follow them. There is a real risk the jury may, consciously or otherwise, be impermissibly influenced in their verdict on Charge 1 as a result of the verdicts on Charges 2-6.
Conclusion
103 In summary, the success of the prosecution in this matter depends on the jury’s assessment of the credibility of the complainant. The fact in issue is whether the jury can be satisfied the events alleged occurred.
104 Charge 1 is a necessarily broad charge, reflecting non-specific events over the course of 12 years. I accept that to properly defend Charge 1 a fulsome attack on the complainant’s credibility must be made on behalf of the accused. I accept the defence contention that the most powerful attack on the complainant’s credit came through significant inconsistencies relating to Charges 2-6. The acquittals on those charges supports that submission.
105 It is artificial for the prosecution to omit from the narrative those specific events. That places the accused in an invidious position of having to make what superficially appears to be a forensic choice by reintroducing those allegations. In my view that evidence of Charges 2-6 is relevant and admissible.
106 Once introduced however it will have a tendency to undermine the previous verdicts, not least because the complainant will maintain the truth of those allegations. This will offend the principle of incontrovertibility.
107 I accept the defence submission that the jury could not be left without any direction from the trial judge about the previous allegations or acquittals. Saying nothing would likely result in speculation and unfair prejudice to the accused. Therefore and despite s.91 in my view the jury would need to be told of the previous verdicts. Issues then arise as to the complexity and effectiveness of any directions.
108 In my view placing the accused in a position where he must make the forensic ‘choice’ to reintroduce the evidence founding Charges 2-6 is itself oppressive. Once introduced there are no evidentiary rulings or directions which to my mind could cure the unfair prejudice likely to result, nor which could give him the full benefit of his acquittals to which he is entitled.
109 In my view this is an example calling on the broad application of the principles of double jeopardy or autrefois acquit contemplated by the case law.
110 The nature and extent of the unfairness occasioned in any retrial is a fundamental defect going to the root of the trial and is such that any retrial on Charge 1 would be oppressive and unfair. In my view the proposed retrial would be an abuse of process.
111 Having made that finding it follows that the application for a permanent stay of proceedings on Charge 1 must be granted.
And I so rule.
13
0