Patrick Alexander (a pseudonym)[1] v The Queen - [2022] VSCA 47

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…

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 Patrick Alexander (a pseudonym)[1] v The Queen

Details

AGLC: Patrick Alexander (a pseudonym)[1] v The Queen [2022] VSCA 47
Case: [2022] VSCA 47
Decision Date: 10 February 2022

CaseChat Overview and Summary

The appellant, Patrick Alexander, sought to appeal against the decision of a trial judge who granted leave for the child complainant to be recalled for further cross-examination, and subsequently refused to stay a new charge of sexual penetration of a child under 16. The case was heard by the Court of Appeal, which had to consider the fairness of the proceedings and the admissibility of the evidence obtained from the child's re-examination. The crux of the legal issues was whether the late filing of a fresh indictment, which introduced a new charge based on statements from the victim's Video Assisted Reciprocal Examination (VARE), prejudiced the defence and whether the judge's decision to allow the complainant to be recalled for further cross-examination was just and appropriate.

The court examined whether the late introduction of the new charge was unfair and whether this unfairness could be remedied. The defence argued that the delay in filing the fresh indictment was prejudicial, as it prevented them from adequately preparing their defence. However, the court considered the possibility of the complainant being recalled for further cross-examination as a means of mitigating any prejudice. The judge had granted leave for the complainant to be recalled, and the court held that this decision was reasonable, as there was sufficient evidence to suggest that the complainant was willing to return for further cross-examination. The court also noted that the decisions made by the trial judge were reasonably open on the facts of the case, and thus, no grounds for appeal were found.

The Court of Appeal found that the trial judge's decision to allow the complainant to be recalled for further cross-examination was a fair and just resolution to the issue of the late filing of the fresh indictment. The court held that the decisions made by the trial judge were reasonably open on the facts of the case, and therefore, the appeal was dismissed. The court considered the relevant provisions of the Criminal Procedure Act 2009, and the decision in Director of Public Prosecutions v Garcia, which was cited as authority for the proposition that the court has broad discretion in deciding whether to stay a new charge and to allow further cross-examination of a complainant. The appeal was dismissed, and the decision of the trial judge was upheld.

Orders