Patrick Alexander (a pseudonym)[1] v The Queen
[2022] VSCA 47
•10 February 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0189
| PATRICK ALEXANDER (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]Because this is an interlocutory proceeding, a pseudonym has been used in place of the name of the applicant and the reasons have been prepared in a form which omits identifying details.
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| JUDGES: | MAXWELL P, SIFRIS and MACAULAY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 February 2022 |
| DATE OF JUDGMENT: | 10 February 2022 |
| DATE OF ORDERS: | 1 April 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 47 |
| JUDGMENT APPEALED FROM: | DPP v [Alexander] (Ruling No 4) (Unreported, County Court of Victoria, Judge Riddell, 7 December 2021) |
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CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Cross-examination – Sexual offences – Child complainant – Late filing of fresh indictment – New charge of sexual penetration of child under 16 – Charge founded on statements in VARE – Whether unfairness to defence curable – Judge granted leave for child complainant to be recalled for further cross-examination – Application for permanent stay of new charge refused – Sufficient evidence that complainant willing to return for further cross-examination – Decisions reasonably open – Leave to appeal refused – Director of Public Prosecutions v Garcia [2015] VSCA 275 considered – Criminal Procedure Act 2009 s 376(2).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Pyne | James Dowsley & Associates |
| For the Respondent | Mr E Ruddle SC with Mr D Plummer | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
SIFRIS JA
MACAULAY JA:
Introduction
This proceeding concerned an application for leave to appeal an interlocutory ruling made by a judge in the County Court before the commencement of a criminal trial. By the ruling, the judge refused an application by the accused (the applicant) for a permanent stay of a newly filed charge of sexual penetration of a child under 12, but granted the applicant leave to recall the child complainant for further cross-examination at a special hearing under Div 2, Pt 8 of the Criminal Procedure Act 2009 (‘CPA’). The judge certified her ruling pursuant to s 295(3) of the CPA.
The applicant is charged on a fresh indictment filed 2 December 2021 with five charges of sexual assault of a child under 16 (charges 1–5) and one charge of sexual penetration of a child under 12 (charge 6). Through prosecutorial error, the original indictment filed in February 2019 did not properly reflect an instance of alleged offending that had been described by the complainant in a video and audio recorded evidence (VARE)[2] interview conducted in September 2018. That alleged offending is properly reflected in charge 6 of the fresh indictment.
[2]See CPA s 367 and Criminal Procedure Regulations 2020 pt 2.
Before the judge, the respondent ‘implicitly accepted’ that the filing of the fresh indictment caused some unfairness to the applicant, as the applicant had already cross-examined the complainant. Both parties accepted that the only remedy for that unfairness was to recall the complainant to be further cross-examined.
By a ruling dated 7 December 2021, the judge granted leave to recall the complainant, over the applicant’s opposition. After considering other aspects of alleged unfairness said to arise from the belated filing of the fresh indictment, her Honour refused an application by the applicant for a permanent stay of charge 6.[3]
[3]DPP v [Alexander] (Ruling No 4) (County Court of Victoria, Judge Riddell, 7 December 2021) (‘Ruling’).
The applicant sought leave to appeal against these interlocutory decisions. We heard the application on 10 February 2021. At the conclusion of oral argument, we refused leave to appeal and said we would provide written reasons for that decision. These are those reasons.
Procedural history
At the time of the alleged offending, the complainant was the applicant’s step-granddaughter. She was seven years old.
The complainant’s account of the alleged offending is contained in a VARE interview conducted by police on 5 September 2018. She described a number of occasions when the applicant touched her vagina at his house, as follows:
(a) she thought the first occasion occurred in January 2018 in the exercise room;
(b) there was an occasion in her grandmother’s bedroom in April 2018;
(c) there was an occasion in the lounge room in May 2018; and
(d) there was an occasion in August 2018, when the applicant touched her twice in the applicant’s office, and then again in the exercise room.
In relation to the touching in the office in August 2018, the complainant said:
He touched my skin on the wee and he hurted my wee … He pushed it really hard … And scratched it without knowing … And then once he scratched it on purpose … It was still in the office … And he just came and just scratched it … It’s the same day.
The complainant then said that on the last occasion in the exercise room, the applicant was ‘touching the inside of [her] wee…actually inside in the crack’.
The applicant was committed for trial on 31 January 2019.
The original trial indictment and summary of prosecution opening were filed in February 2019.
Charges 1–3, 5 and 6 on the original indictment alleged sexual assault of a child under 16 years old. Charges 1–3 were particularised as relating to different occasions of sexual touching of the complainant’s vagina, respectively the exercise room, her grandmother’s bedroom and the lounge room. Charges 5 and 6 were particularised as relating to two instances of sexual touching of the complainant’s vagina in the applicant’s office on the same occasion. Charge 4 on the original indictment was sexual penetration of a child under 12, particularised as ‘[c]omplainant details the [applicant] “actually touching her wee” and it hurt’. Charge 4 was noted as an alternative to charge 3 (which was sexual touching in the lounge room).
The complainant was cross-examined at a special hearing on 8 August 2019 (‘Special Hearing’). The applicant’s counsel did not ask the complainant any questions about sexual penetration in the lounge room, the subject of charge 4 on the original indictment. He also did not ask her any questions about sexual assault or sexual penetration in the exercise room on the occasion of the last visit or about blood or injury to her vagina, the subject of charge 6 of the new indictment.
After a number of trial vacations as a result of a fitness investigation, the COVID-19 pandemic and pre-trial argument, the trial was listed to commence on 2 December 2021.
On 2 December 2021, the respondent filed the fresh indictment[4] and an amended summary of prosecution opening. No changes were made to charges 1–3. Charges 5 and 6 were renumbered as charges 4 and 5. The original penetration charge (original charge 4) was omitted. A new charge 6 was included alleging sexual penetration of a child under 12.
[4]Pursuant to CPA s 164. Leave was not required for the prosecution to take that step.
The particulars of the new charge 6 were ‘[c]omplainant details the [applicant] “touching inside her wee, actually inside the crack”’. Whereas the original penetration charge was particularised as having occurred in the lounge room (being an alternative to charge 3 which was specified to have occurred in that room), the new penetration charge was silent as to location. However, the accompanying amended opening alleged that it occurred in the exercise room and its timing was confined to the month of August 2018.
The part of the amended opening relevant to charge 6 is as follows:
On or about 12 August 2018, the complainant and her family visited … and the [applicant]… The adults were sitting at the kitchen table. The complainant went upstairs to the exercise room. She was making noise from upstairs. The [applicant] went upstairs. It became quiet upstairs.
The complainant was sitting on a bean bag in the exercise room. The [applicant] came into the room. He began touching the complainant’s skin. She described it as him ‘touching the inside of her wee with his hands’. He was doing it on the inside and was scratching it a little bit. She described being touched ‘actually inside the crack’. (Charge 6, sexual penetration of a child under 12)
Later that night [the complainant’s father] noticed what appeared to be a blood streak on the inside of the complainant’s underwear. [The complainant’s mother] later put cream on the complainant’s vagina because the complainant said that her vagina was sore.[5]
[5]Citations omitted.
The judge heard submissions from the parties about the effect of the filing of the fresh indictment and amended opening at that late stage. As already noted, the prosecution accepted that there was an element of unfairness to the accused, and it was common ground that the only remedy for dealing with unfairness was to recall the complainant to be further cross-examined.
Recalling a complainant to be cross-examined at a special hearing requires a grant of leave pursuant to s 376 of the CPA. That section provides:
(2)A court must not grant leave to cross-examine a complainant referred to in subsection (1) unless the court is satisfied that—
(a)the accused is seeking leave because of becoming aware of a matter of which the accused could not reasonably have been aware at the time of the recording; or
(b)if the complainant were giving direct testimony in the proceeding, the complainant could be recalled, in the interests of justice, to give further evidence; or
(c)it is otherwise in the interests of justice to permit the complainant to be cross-examined or re-examined.
Before the judge, the applicant relied heavily on this Court’s decision in Director of Public Prosecutions v Garcia (‘Garcia’)[6] to contend that leave should not be granted and that there should be a permanent stay of charge 6. In Garcia, this Court outlined the strong policy considerations against granting leave to recall a complainant and refused leave to appeal against the grant of a permanent stay of two course of conduct charges laid days after a child complainant was cross-examined at a special hearing.
[6][2015] VSCA 275 (Maxwell P, Osborn JA).
The prosecutor sought to distinguish Garcia on the basis that there was no evidence regarding the attitude or ability of the complainant in that case to return for cross-examination. He informed her Honour that the complainant was willing to return and give evidence, and that her parents were supportive of that decision. The applicant’s counsel submitted that the Court should not proceed on the basis of assertions from the bar table. The judge agreed and gave the prosecution the opportunity to call evidence from either or both parents. The prosecutor then called evidence from both of the complainant’s parents.
The Ruling
The judge first considered whether to grant leave under s 376 of the CPA to recall the complainant. The judge noted that the prosecution did not seek to recall the complainant as her evidence in chief was already in the VARE, but the prosecution would not object to the applicant seeking to recall her. (As we have noted, although the defence accepted that recalling the complainant was the only way to cure the unfairness caused by the late filing of the fresh indictment, the defence submission was that leave to recall should not be granted.)
The judge referred to the strong policy considerations behind s 376 approved by this Court in Garcia. Her Honour noted that central to the trial judge’s reasoning in that case was the rationale behind the scheme introduced to protect children and vulnerable witnesses in the criminal justice system.
In summary, from the evidence of the complainant’s parents, the judge was satisfied of the following matters:
(e) the prosecution had explained to both parents that there was a discrepancy or error in the charges, there was likely to be a delay in the trial and the complainant may be required to return and give some more evidence;[7]
[7]Ruling [55].
(f) both parents understood the complainant had a choice whether or not to return to give evidence;[8]
[8]Ibid [56]–[57].
(g) the complainant’s mother told the complainant to expect a delay following which the complainant became upset;[9]
[9]Ibid [58].
(h) the complainant’s mother later told the complainant that ‘they may need you for questioning for it and hopefully there may not be a delay’ and the complainant immediately said, ‘I’ll do it. I’ll do it. I can do it mum, I’ll do it mum ... as long as they promise it’s over with’;[10]
[10]Ibid.
(i) the complainant’s mother told the complainant she did not know when the complainant would be required to return to give evidence, but several times the complainant said ‘she’s ready to do it, she wants to come back, she can do it. She’s confident to do it’;[11]
[11]Ibid [59].
(j) the complainant’s mother was concerned about the prospect of traumatising the complainant and told the complainant she had a choice and did not have to return, but spoke of the complainant’s determination and fierceness in saying she wished to give evidence;[12]
[12]Ibid.
(k) the complainant’s mother made clear there would be a delay in any event and the complainant giving evidence was not necessarily the fastest way to proceed;[13]
[13]Ibid [60].
(l) both parents understood giving evidence would involve being asked by a barrister or judge to give evidence in a manner similar to the Special Hearing;
(m) the complainant had asked her mother whether it would be ‘the same as last time’ and her mother said ‘yes I assume it would be … Maybe not as many questions’;[14]
[14]Ibid [61].
(n) both parents gave consideration to the potential for negative impacts and trauma if the complainant returned;[15]
(o) the complainant has had some counselling and still had support in place;[16] and
(p) the complainant is now 11 years old, is in grade five and doing well.[17]
[15]Ibid [62].
[16]Ibid.
[17]Ibid [63].
Her Honour accepted that the complainant’s willingness to return was not determinative, but agreed with the prosecutor that the case could be distinguished from the facts in Garcia, in which there was no suggestion of a willingness let alone desire to return; rather there was evident relief that questioning was complete.[18] The judge also noted that the further cross-examination in Garcia (course of conduct charges) was anticipated to be lengthy, whereas here it would be about a discrete occasion and its consequences.[19]
[18]Ibid [65].
[19]Ibid [66].
The judge explained that the complainant would have available to her child witness supports and the intermediary both before and during evidence. The complainant would give evidence remotely and with the recommendations of the intermediary and orders from any Ground Rules hearing.[20]
[20]Ibid [67].
The judge accepted the respondent’s submissions that if the complainant was prevented from giving evidence, with the consequence that the most serious charge on the indictment would not proceed, she might feel aggrieved, either now or in the future.[21] In those circumstances, her Honour said, the legislation would have caused the complainant an injustice, and that could not have been the legislative intention.[22]While recognising that the legislative scheme had been introduced to protect vulnerable witnesses from the trauma of a criminal trial, her Honour considered that there was ‘equally strong policy behind developments which have enabled children and cognitively impaired persons to give evidence’.[23]
[21]Ibid [68].
[22]Ibid.
[23]Ibid [68]–[70].
In her Honour’s view, it was in the interests of justice to grant leave for the complainant to be recalled.[24] Having found that remedy to be available, the judge then considered the applicant’s application for a permanent stay of charge 6. She was mindful that a permanent stay of a prosecution was a remedy of last resort.[25]
[24]Ibid [72].
[25]Ibid [73].
The judge accepted it was undesirable for the prosecution to make this change to the indictment after such a long time and that it created forensic challenges for the defence.[26] However, her Honour did not accept that this was ‘a fundamental defect which goes to the root of the trial and cannot be relieved by appropriate directions’.[27] She further accepted that there was a strong public interest in the most serious charge of sexual penetration being prosecuted.[28]
[26]Ibid [83]–[84].
[27]Ibid [84]–[85].
[28]Ibid [86].
Her Honour did not accept that the level of unfairness to the applicant was such that a permanent stay should be granted on charge 6 and refused the application.
Proposed grounds of appeal
The applicant sought leave to appeal on the following grounds:
(1)The learned trial judge erred by granting leave under s 376(2) of the Criminal Procedure Act to recall the complainant to be cross-examined; and
(2)The learned trial judge erred by failing to permanently stay charge 6 on the indictment.
Applicant’s submissions
The applicant again relied on Garcia. He submitted that the facts of this case and Garcia were very similar, and further that the delay in filing the fresh indictment and recalling the complainant were far greater in this case, being three years after her VARE and two years after the Special Hearing.
The applicant contended that the proposal to recall the complainant was an affront to legislation designed to ensure the case against an accused is adequately disclosed, that sexual offence trials are resolved quickly and that child complainants in sexual offence cases, except in very limited circumstances, are cross-examined only once. The applicant submitted that the interests of justice lay firmly in maintaining the effect of this legislation.
It was further submitted by the applicant, relying on Garcia, that recalling the complainant would magnify the difficulties of cross-examination for the applicant because counsel would be required to isolate a single incident years after it was alleged to have occurred. The applicant also contended that it could be inferred that counsel at the Special Hearing made legitimate forensic decisions based on the case as it then was, including not cross-examining on an incident that was not on the indictment and not asking about blood on the complainant’s underwear. Whether, and if so how, to cross-examine on such topics, years later, would be difficult forensic decisions that counsel should not have to make.
The applicant also argued that the effect of recalling the complainant more than three years after the alleged events may serve to bolster her credibility, giving the prosecution a forensic advantage by enabling it to submit that she has ‘stuck to her story’ over time.
The applicant submitted also that limited weight should be given to the complainant’s parents’ evidence that she was willing to return to give evidence. The applicant said the complainant, now aged 11, was being asked to make a sophisticated judgment based on limited information. The applicant argued that the evidence was hearsay and of limited utility. In substance, it was said, the evidence was only that the complainant wanted the proceedings finished, and that was insufficient to displace the policy considerations in Garcia. The applicant also submitted that there was no evidentiary basis for the judge to find that the complainant might in future become aggrieved if she learnt the most serious charge would not proceed.
Respondent’s submissions
The respondent submitted that receiving evidence from the complainant’s parents as to the attitude of the complaint was appropriate. The respondent contended that the parents had an understanding of the court process, had observed the complainant before and after she gave evidence at the Special Hearing, knew her best, had her best interests at heart, emphasised they would not push her to give evidence and were well placed to opine on the potential impact on her.
The respondent contended that, in contrast to Garcia, there was evidence that the complainant was capable of understanding the stress and trauma that might result from giving further evidence, had properly considered the matter and made an informed decision, and had indicated that she wanted to give further evidence. The respondent acknowledged that the legislation was designed to protect child complainants but emphasised that each case must be assessed on its own facts, including the attitude of the complainant.
In respect of the stay application, the respondent noted that there was a strong public interest in the most serious charge being tried. Any unfairness to the applicant would be cured by recalling the complainant for further cross-examination. The delay, whilst unfortunate, was insufficient to warrant a stay because any forensic disadvantage could be dealt with by directions. As charge 6 related to a single specific act, the cross-examination was likely to be confined.
Analysis
In the particular circumstances of this case, whether or not charge 6 should proceed or be subject to a permanent stay depends primarily, but not exclusively, upon whether the complainant will be recalled for further cross-examination. It is therefore convenient to deal first with the challenge to her Honour’s decision to grant leave for the complainant to be recalled.
A decision whether or not to grant leave under s 376(2)(c) of the CPA is a discretionary decision. Appellate review of such a decision is therefore governed, and constrained, by the principles in House v The King.[29]In order to justify appellate intervention, the applicant is required to establish either specific error or that the decision was not reasonably open to the judge.[30] The bar is high.
[29](1936) 55 CLR 499.
[30]See Brewer v The Queen [2017] VSCA 117, [10] (Maxwell P and Kyrou JA); Peterson v The Queen (2019) 57 VR 521, 524 [11] (Maxwell P and Taylor AJA); [2019] VSCA 12.
The applicant did not rely on specific error. His submission was that — for the reasons he had advanced, as set out earlier — the decision to grant leave was not reasonably open to the judge. Reliance was placed in particular on the policy considerations and the observations of this Court in Garcia.
We concluded that it was well open to her Honour to be satisfied, in accordance with s 376(2)(c), that it was ‘in the interests of justice to permit the complainant to be cross-examined’. In our respectful opinion, her Honour’s reasoning was exemplary, and her conclusion unimpeachable.
Contrary to the applicant’s argument, the opening words of s 376(2) (‘a court must not grant leave’) do not operate of their own force to confine the scope of the discretion. The phrase ‘must not’ is, of course, prohibitory. But, read as a whole, s 376(2) is a power-conferring provision. That is, it confers power on the court to grant leave, subject to the fulfilment of one or other of the jurisdictional conditions specified in sub-paras (a)–(c). The power to grant leave is enlivened once the court reaches the relevant state of satisfaction. On this analysis, the intent and effect of the provision would have been no different had the opening words been, ‘A court may only grant leave to cross-examine a complainant if the court is satisfied …’.
That the discretion was intended to be of broad scope is demonstrated by the use of the phrase ‘in the interests of justice’ in both sub-paras (b) and (c). The deliberate use of such a compendious phrase was plainly intended to give the court wide power to take account of, and weigh up, all of the circumstances of the case and to consider the respective interests of the various participants.
In the present case, the judge relied on sub-para (c). That is, the power to grant leave was enlivened because her Honour was satisfied that it was ‘in the interests of justice to permit the complainant to be cross-examined’. The power being conditioned on her Honour’s state of satisfaction, the decision to grant leave could only have been impugned if it had been established that she could not reasonably have reached that state of satisfaction.[31] The difficulty of that task is self-evident.
[31]Ibid.
Her Honour was clearly correct to regard the attitude of the complainant as a very important consideration. Having decided that evidence from the bar table was inappropriate, she had to decide how best to inform herself of the attitude of the complainant. She agreed to hear the evidence of the parents and, having done so, was content to rely upon their evidence. In our view it was entirely open to the judge to follow that course rather than involve the complainant or an intermediary.
Accordingly, it was open to the judge to give primacy to the complainant’s attitude, based on the evidence of her parents, and conclude that ‘the legislation ought not be used to prevent a willing and competent complainant from returning to give evidence if the interests of justice require’.[32]
[32]Ruling [64].
As part of his submissions, counsel for the applicant contended that delay and other unfairness factors referred to by Osborn JA in Garcia were relevant to both proposed grounds 1 and 2. So long as they are considered, they can equally be dealt with under proposed ground 2.
It is now convenient to deal with the refusal to grant a permanent stay, also a discretionary matter attracting on appeal the principles in House v The King. Again, no specific error is referred to, the applicant contending that it was not open to the judge to refuse a permanent stay. We do not agree. All relevant matters were properly considered by the judge in her determination that there was no unfairness to the applicant, particularly given the disposition under s 376(2)(c) of the CPA. Any other suggested unfairness could be dealt with by suitable jury directions.
The applicant further submitted that, notwithstanding the order under s 376(2)(c), the following matters gave rise to unfairness, justifying a permanent stay. First, the ongoing delay of the trial (almost two years). Secondly, that the passage of time from the VARE (three years and three months) and the Special Hearing (two years and four months) is likely to affect the quality of the evidence of the complainant and that the complainant was more likely to refer to what she said in the VARE than what she can remember. Alternatively and prejudicially, that the evidence of the complainant, now 11, may enhance her credibility and reliability. This, the applicant submitted, would present difficulties in cross-examination and in providing an adequate explanation to the jury. Thirdly, that this was not a case where, as a consequence of a stay being granted, no charges would be prosecuted.
In our opinion, it was open to the judge to reject the contention that the unfairness referred to (in any of its aspects, or in combination) went to the root of the trial and to conclude, instead, that the unfairness could be cured by the order made under s 376(2)(c) and by appropriate directions.
In relation to delay, the judge did not regard the delay of about four years (from the time of the offending) as inordinate, particularly in child sexual offence cases. Further, almost two years were spent dealing with fitness issues and unavoidable delays associated with COVID-19. Further, the judge accepted that even if there was a permanent stay, there would still be some delay associated with the removal or editing of prejudicial references associated with the fresh indictment.
In relation to the fresh indictment and any further evidence from the complainant, the judge fairly accepted that this created forensic challenges and some unfairness for the applicant. However, her Honour noted it was not uncommon for child witnesses to give evidence many years after the offending and that juries were well able to take into account changes in age, particularly with specific directions if required. Here, for example, a forensic disadvantage direction could be given to the effect that the complainant is now older, has watched her VARE and is giving evidence years after both her VARE and Special Hearing. A further specific direction could be given to inform the jury that the re-calling of the complainant was through no fault of the applicant but was due to prosecutorial error.
In relation to the contention that the remaining (lesser) charges would proceed in any event, the judge was right to have regard to the strong public interest in prosecuting the more serious charge of sexual penetration based on the account given by the complainant in her VARE. Further, in relation to unfairness more generally, the judge said that ‘the portion of the VARE and correlating charges were known to [the applicant] at the outset and time of committal. The portion of the VARE remained in evidence’.[33]
[33]Ibid [96].
Accordingly, the judge ruled that it was appropriate for the prosecutor to have sought to rectify the error and that any unfairness could be adequately dealt with. There was no error in those conclusions.
For these reasons, leave to appeal was refused.
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