Porter (a pseudonym) v The King
[2024] VSCA 127
•7 June 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0052 |
| LINCOLN PORTER (a pseudonym)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]To avoid the possibility of identifying the alleged victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST, BOYCE and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 June 2024 |
| DATE OF JUDGMENT: | 7 June 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 127 |
| JUDGMENT APPEALED FROM: | DPP v [Porter] (Unreported, County Court of Victoria, 15 March 2024, Judge Todd) |
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CRIMINAL LAW – Interlocutory appeal – Proposed retrial on charges of sexual penetration and sexual assault – Two previous trials in which jury acquitted the applicant on some charges but were unable to reach verdicts on others – Whether retrial an abuse of process – Whether trial judge erred in refusing to order a permanent stay – Appeal allowed.
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| Counsel | |||
| Applicant: | Mr D Carolan | ||
| Respondent: | Mr R Gibson KC with Mr M Wilson | ||
Solicitors | |||
| Applicant: | James Dowsley & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
BOYCE JA
KAYE JA:
Introduction
On 20 May 2022, the applicant was committed to stand trial in the County Court on 12 charges of sexual assault of a child under the age of 16[2] and four charges of sexual penetration of a stepchild.[3] Subsequently, in June 2022, an indictment containing 16 charges was filed. Each charge alleged offending against the applicant’s stepdaughter, ‘MRD’, in a period between 27 February 2019 and 31 December 2021, when MRD was aged between 12 and 14 years.
[2]Crimes Act 1958 (as amended by the Crimes Amendment (Sexual Offences) Act 2016), s 49D(1).
[3]Crimes Act 1958 (as amended by the Crimes Amendment (Sexual Offences) Act 2016), s 50D(1).
In two trials, in April and September 2023 respectively, seven of the original 16 charges were disposed of: one charge was the subject of a directed acquittal; four charges resulted in jury verdicts of not guilty; and two charges were effectively abandoned by the prosecution. Two separate juries have been unable to agree on verdicts on the nine outstanding charges.
Notwithstanding that two juries have been unable to reach verdicts, the prosecution proposes to retry the applicant on the nine outstanding charges.
On 7 March 2024, the applicant made an application to a judge of the County Court for a permanent stay of the proceedings, contending that to attempt to once more try him amounts to an abuse of process.
In a ruling dated 15 March 2024, the judge refused to stay the proceedings (‘the ruling’ or ‘the interlocutory decision’).
By a notice filed 19 March 2024, the applicant seeks leave pursuant to s 295(3)(b) of the Criminal Procedure Act 2009 (‘CPA’) to appeal against the interlocutory decision on a ground that contends that the judge erred
in refusing to order a permanent stay of the proceeding in circumstances where the applicant had been the subject of two prior hung juries and a further additional discharged jury.
In our view leave to appeal should be granted; the appeal allowed; and the interlocutory decision set aside. Our reasons follow.
Background
It is necessary to set out the relevant background.
As we have mentioned, in May 2022 the applicant was committed to stand trial in the County Court on 12 charges of sexual assault of a child under the age of 16 and four charges of sexual penetration of a stepchild. A 16-charge indictment against the applicant was filed shortly afterwards in the County Court, containing 12 charges of sexual assault of a child under 16 (1, 2, 3, 4, 8, 9, 10, 12, 13, 14, 15 and 16) and four charges of sexual penetration of a stepchild (5, 6, 7 and 11) (‘the first indictment’).
A trial on the first indictment took place between 13 and 26 April 2023 (‘the first trial’), resulting in a directed acquittal on one charge, charge 9, and majority verdicts of not guilty on three charges, charges 4, 5 and 8. The jury were unable to reach verdicts on the remaining 12 charges and were accordingly discharged. Initially, the jury retired on Friday, 21 April 2023. The following Monday, 24 April 2023, after a question from the jury, the trial judge gave the jury — who had by that stage been deliberating for five hours and 35 minutes — a majority verdict direction. When, on Wednesday, 26 April 2023, the jury indicated they were at an impasse — having by then deliberated for approximately 12 hours and five minutes — the judge took majority verdicts of not guilty on charges 4, 5 and 8. A retrial was then fixed for 4 September 2023.
For the purposes of the retrial, a new 10 charge indictment (‘the second indictment’) was filed, the prosecution omitting from that indictment what had been charges 12 and 13 on the first indictment. A jury was empanelled on 5 September 2023 (‘the first retrial’), but was discharged the following day, 6 September 2023, after evidence relating to charges upon which the applicant had been acquitted was inadvertently introduced.
A further retrial on the second indictment commenced on 7 September 2023 (‘the second retrial’). As now commonly occurs, the second retrial was conducted on the recorded evidence of the witnesses from the first trial, edited to reflect the earlier acquittals. On 15 September 2023, the jury found the applicant not guilty on charge 7 (sexual penetration of a stepchild) — it had been charge 10 on the first indictment — but were unable to reach verdicts on the nine remaining charges, and were therefore discharged. Significantly, the jury had been given a perseverance direction after deliberating for approximately six hours and 30 minutes, and had been given a majority verdict direction after deliberating for eight hours and 20 minutes. In all, the jury deliberated for about 10 hours and 40 minutes.
A third retrial was listed to commence on 18 March 2024, the prosecution intending to rely on a new nine charge indictment (‘the third indictment’), containing seven charges of sexual assault of a child under 16 (1, 2, 3, 6, 7, 8 and 9) and two charges of sexual penetration of a stepchild (4 and 5). In light of the previous directed acquittal on one charge; the verdicts of not guilty on four charges; and the prosecution decision not to include two charges from the first indictment in the second or third indictment; charges 1, 2, 3, 11, 14, 15 and 16 (sexual assault of a child under 16), and charges 6 and 7 (sexual penetration of a stepchild), from the first indictment are reflected respectively in charges 1, 2, 3, 6, 7, 8 and 9, and charges 4 and 5, on the third indictment. The table below shows how the charges from the first indictment are reflected in the third (and current) indictment:
Charge on third indictment
Charge on first indictment
Charge
1
1
Sexual assault of a child under 16
2
2
Sexual assault of a child under 16
3
3
Sexual assault of a child under 16
4
6
Sexual penetration of a stepchild
5
7
Sexual penetration of a stepchild
6
11
Sexual assault of a child under 16
7
14
Sexual assault of a child under 16
8
15
Sexual assault of a child under 16
9
16
Sexual assault of a child under 16
The acquittals and abandoned charges
So as to help form an assessment of whether a third retrial would be an abuse of process, it is necessary to understand the allegations founding those charges that have been disposed of by verdict, or abandoned by the prosecution.
To risk repetition, four charges were disposed of in the first trial: charge 9 by directed acquittal, and charges 4, 5 and 8 by way of majority verdicts of not guilty. Putting charges 4 and 5 in context, the prosecution alleged that the applicant’s sexual offending commenced shortly after MRD had sex education classes at school. Charges 1 to 5 related to three incidents which were alleged to have occurred between 27 February and 31 December 2019. Charges 4 and 5 related to the third of those incidents. The applicant was alleged to have woken MRD and taken her to the living room of the family home. He undressed the complainant and touched her breasts (charge 4, sexual assault of a child under 16). The applicant was then alleged to have touched MRD’s vagina, including placing his fingers between the lips and rubbing her clitoris in a circular fashion (charge 5, sexual penetration of a stepchild). Majority verdicts of not guilty were, as mentioned, delivered on these charges.
Charge 9 on the first indictment was, as we have said, the subject of a directed acquittal in the first trial, and charge 8 resulted in a majority verdict of not guilty at that trial. Both charge 8 and charge 9 arose out of a single episode, alleged to have occurred in the living room of the family home in the early hours of Valentine’s Day 2020. The prosecution alleged that, after the applicant had removed MRD’s upper clothing, he kissed her breasts and licked her nipples (charge 8, sexual assault of a child under 16). He then kissed her on her vagina, near the lips of her vagina (charge 9, sexual assault of a child under 16).
When the second indictment was filed, charges 12 and 13 from the first indictment were omitted (and have not been revived in the third indictment). Charges 12 and 13 both arose out of an alleged episode on Valentine’s Day 2021, when the applicant was alleged to have kissed and licked the complainant’s nipples (charge 12, sexual assault of a child under 16), and kissed her on the vagina (charge 13, sexual assault of a child under 16).
In the second retrial, the jury acquitted the applicant of charge 7 on the second indictment (sexual penetration of a stepchild). It had been charge 10 on the first indictment. The foundation of that charge was an allegation that, on a day in 2020, the applicant entered MRD’s bedroom and forced her to her knees before putting his penis into her mouth and ejaculating.
Charges on the third indictment
The nine outstanding charges contained in the third indictment embrace five alleged incidents, as follows.
The first incident: charge 1 on the third indictment; charge 1 on the first indictment
Charge 1 relates to the first alleged sexual activity perpetrated by the applicant against the complainant between 27 February 2019 and 31 December 2019. The prosecution alleges that, at about 6.00 or 7.00 am, the day after MRD had sex education classes at school, the applicant allegedly woke MRD and took her into the living room of the family home and placed her hand on his penis for about 10 seconds (charge 1).
The second incident: charges 2 and 3 on the third indictment; charges 2 and 3 on the first indictment
The prosecution alleges that the following day the applicant again woke the complainant and took her into the living room. The applicant took off MRD’s shirt and bra and touched her breasts (charge 2). When MRD said she did not like it, he said, ‘OK, touch my penis’, and he placed her hand on his penis (charge 3).
The third incident: charges 4 and 5 on the third indictment; charges 6 and 7 on the first indictment
Charges 4 and 5 relate to an incident that allegedly occurred early one morning when MRD was sitting on her bed reading a book. The applicant walked into her bedroom and told her to lay down on the bed. He then removed her pyjama pants and underwear, spread her legs and inserted one of his fingers into her vagina (charge 4). The applicant then inserted his tongue into the complainant’s vagina (charge 5). After the applicant asked him to stop several times, he left the room.
The fourth incident: charge 6 on the third indictment; charge 11 on the first indictment
The prosecution alleges that the following year, in the early hours of one morning, the applicant got the complainant up and asked her to come to the living room. She walked into the living room and saw him lying on the floor near the couch. The applicant asked the complainant to lie down next to him, and he then grabbed her breast, over her clothing (charge 6).[4]
The fifth incident: charges 7, 8 and 9 on the third indictment; charges 14, 15 and 16 on the first indictment
[4]In the first indictment, and initial summary of prosecution opening, the applicant was alleged to have touched MRD’s vagina. The third indictment, however, alleges that the applicant touched MRD’s breast.
On an afternoon in December 2021, MRD had been Christmas shopping. The prosecution alleges that the applicant came home from work and suggested that he and MRD shower together. After he had removed his and MRD’s clothes, they got into the shower. The applicant used both hands to rub Lynx body wash over the complainant’s body, including her back and breasts (charge 7), and the outside of her vagina (charge 8). At one point the applicant was standing behind the complainant, and she could feel his erect penis between her thighs, touching the top of the lip of her vagina (charge 9). He then ejaculated on her leg. MRD asserts that the ‘shower incident’ was the last time anything sexual happened with the applicant.
Additional evidence sought to be led on the third trial ruled inadmissible
We pause to note that, for the purposes of the anticipated third retrial, the prosecution had sought to rely on additional evidence, not led on the first two trials, as tendency evidence. The additional evidence was as follows.
Investigating police spoke to the complainant’s brother, ‘JD’, on 16 February 2022. When asked if he had seen anything happen between his sister and the applicant, JD asserted that he only saw normal things, with clothes on. He said he never noticed anything, and felt ‘really bad about that’.
On 10 October 2023, however, JD participated in a VARE[5] interview with police. He told police that, when he was in Grade 3 or 4 (in 2018 or 2019), he had in fact seen three incidents between the applicant and MRD. First, at about 7.30 am one morning, JD awoke and walked down the hallway. He looked into the living room, and saw the applicant rubbing the complainant’s leg with his hand. JD heard the complainant asking if she could go back to her room. Secondly, a few months later, at about 6.00 am, JD awoke and walked down the hallway. He looked into the kitchen and saw the applicant rubbing MRD’s back and playing with her hair. The applicant was wearing only underpants. JD heard MRD asking the applicant to stop, and to let her go back to her room. Thirdly, about a year later, JD awoke early one morning and walked down the hallway. He looked into the living room and saw the applicant sitting on the couch naked. JD heard the applicant telling the complainant ‘touch my dick’. MRD was saying ‘no’, and was asking the applicant to let her go back to her room.
[5]Video and Audio Recorded Evidence. See CPA, ss 366 and 367.
Although JD’s putative evidence did not directly support any of the events described by MRD, certain aspects — the location of the living room, the time early in the morning — did correspond to some degree with parts of the complainant’s evidence concerning some of the offending. The prosecution proposed to lead evidence of the events described by JD, as uncharged ‘other misconduct’ evidence. JD’s evidence was the subject of a tendency notice under s 97(1)(a) of the Evidence Act 2008, dated 29 February 2024. The prosecution wished to rely on the events described by JD as evidence of the tendency of the applicant (among other things) to have a sexual interest in MRD and a willingness to act on that interest. Significantly, however, the prosecution did not seek to rely on the applicant’s alleged tendencies for all nine charges, however, restricting it to charges 1, 2 and 3.
Following an application by the defence, the trial judge excluded the tendency evidence sought to be adduced from JD, finding that
the evidence of tendency in the trials on charges 4–9 creates significant danger of unfair prejudice for the [applicant] on the trials of those charges, more serious and greater in number. The danger of unfair prejudice for the [applicant] on charges 4–9 is manifest, and outweighs the significant probative value of the evidence for proof of charges 1–3.
The interlocutory decision
As we have indicated, the applicant sought a permanent stay of proceedings on the basis that a third retrial on the remaining nine charges is ‘oppressive and a misuse of the Court’s process’.
In her ruling, having set out the procedural history of the matter, the judge dealt with the tendency evidence that the prosecution sought to introduce into the third retrial.[6] Upon determining that the tendency evidence should be excluded, the judge turned to the principles that inform the grant of a stay of criminal proceedings.
[6]See [29] above.
The judge observed that it is for the Director of Public Prosecutions to decide whether to retry an accused after juries have been ‘hung’. A court may, however, stay criminal proceedings if their continuation would involve injustice or unfairness or be so ‘unfairly and unjustifiably oppressive’ as to constitute an abuse of process.[7] Only an exceptional case justifies the grant of a permanent stay.[8] The onus of establishing that the case falls into one or more categories of ‘oppression’ or ‘abuse of process’ is a heavy one, borne by the applicant.[9]
[7]The judge cited R v Edwards (2009) 83 ALJR 717, 723 [33] (Hayne, Heydon, Crennan, Kiefel and Bell JJ).
[8]Citing GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857, 867–8 [22] (Kiefel CJ, Gageler and Jagot JJ) (‘GLJ’).
[9]Citing Williams v Spautz (1992) 174 CLR 509, 529 (Mason CJ, Dawson, Toohey and McHugh JJ).
Next, the judge referred to Clark,[10] and a number of English authorities,[11] and said:
The principles I discern from those cases, as approved in Clark, are that a Court should consider the following matters in the context of an application to stay a second retrial:
• Is the allegation one ‘of extreme gravity’?;[12]
• Is the trial judge satisfied there was powerful evidence that the defendant had committed the crime?;[13] and
• The number of cases in which a third trial is permitted should be strictly limited in order to maintain public confidence in the administration of justice and to provide finality for the accused; and
• The Court must more generally proceed with extreme caution.
[10]Clark v The Queen (2016) 258 A Crim R 511 (Weinberg AP, Ashley and Coghlan JJA) (‘Clark’).
[11]R v Bell [2010] 1 Cr App R 27, 407 (‘Bell’); R v Burton [2016] 1 Cr App R 7 (‘Burton’); R v Ali [2011] 3 All ER 1071 (‘Ali’).
[12][Clark] [48] citing Bell (n 23) [46].
[13]Ibid.
Having observed that the ‘principles in the English cases do not displace the principles on an application to stay a trial in Victoria, although they do assist in the application of those principles’, the judge expressed the view that the outstanding charges were of ‘profound seriousness’. As to the strength of the prosecution case, the judge said that she did not consider the case to be ‘essentially weak’, and certainly did not think it ‘foredoomed to fail’. The judge added that she had considered the ‘push button’ nature of the proposed retrial and whether that contributed to ‘the discriminatory and unfair pursuit of further jury trials described by the Court in Clark’. Finally, the judge said that she had considered ‘the maintenance of public confidence in the administration of justice, the desirability of finality for an accused, and whether the public would consider a third trial in all the circumstances to be oppressive and undermine the interests of justice’.
Ultimately, the judge concluded that
this decision is not concerned with whether the decision to bring a second re-trial is the right one; that is a non-reviewable, non-justiciable decision of the Director. My task, my only task, is to consider, whether that decision having been made, this Court is to be used as an instrument of oppression, and that this is one of the rare and exceptional cases which demands the Court take the unusual step of staying the trial.
I accept the conduct of a second re-trial is distressing for the [applicant], and that he deserves finality in these proceedings, and there is a public interest in that. I have attempted to alleviate some of that pressure by the grant of bail while awaiting further trial. I balance deference to those rights against the powerful public interest in those accused of serious crimes being tried for them. I consider, balancing the competing arguments, that the use of this Court for a second re-trial does not give rise to oppression such that the Court must move, at this stage, to prevent the further trial.
Applicant’s submissions in this Court
In this Court, the applicant’s counsel contended that the Court should make an order staying the proceedings, or, alternatively, remitting the matter to the trial judge.
Counsel submitted in writing that ‘this is an exceptional case, having regard to the fact that the remaining charges proposed to be the subject of a second retrial are of dubious strength and, while serious, not of extreme gravity’. Relying principally on Clark and Bell, the applicant’s counsel submitted: first, a second retrial ought only occur in one of the very small number of cases in which the jury was being invited to consider a crime of ‘extreme gravity’, which had undoubtedly been committed;[14] secondly, before ordering a second retrial, rather than staying the proceeding as an abuse of process, a trial judge should be satisfied that there is powerful evidence an accused had committed the crime of extreme gravity;[15] and thirdly, the number of cases in which a third trial is permitted ought be strictly limited to maintain public confidence in the criminal justice system and provide finality for an accused, the Court needing to proceed with ‘extreme caution’ before ordering a third trial.[16]
[14]Bell, 418 [46].
[15]Ibid.
[16]Burton, 106 [36].
The applicant’s counsel submitted that the offences charged in the present case cannot be equated to those of ‘extreme gravity’ discussed in the English cases. Moreover, counsel contended that, whilst the prosecution case cannot be described as ‘hopeless’ or ‘bound to fail’, on a proper construction of the evidence it was properly characterised as ‘weak, but triable’. Counsel then referred to alleged weaknesses in the prosecution case, and submitted that the judge was wrong not to have made an assessment of the prosecution case. Moreover, the proposed retrial being a ‘push button’ trial — that is, a retrial employing recorded evidence — had the potential for oppression and unfairness
Finally, counsel for the applicant submitted that the jury on the proposed retrial will be the fourth jury empanelled to try the applicant, since, in addition to the two ‘hung’ juries, another jury was discharged due to a prosecution error. So much compounds the oppression that weighs on the applicant.
Respondent’s submissions in this Court
Counsel for the respondent summarised the principles to be derived from Clark and Ballard,[17] and submitted that the applicant bears a heavy burden in demonstrating that the proposed retrial would involve unacceptable injustice or unfairness.
[17]Ballard v The Queen [2024] VSCA 26 (Priest and Walker JJA, and Croucher AJA) (‘Ballard’).
Insofar as the applicant relied on the statement in Bell that a third trial (following two hung juries) should be confined to ‘the very small number of cases’ where the offence is of ‘extreme gravity’, and there is ‘very powerful evidence’ that the accused committed it,[18] the respondent submitted that dictum did not represent the law in Victoria. Counsel submitted that the Court in Clark did not apply Bell, or state that it represented the law in this State. Beyond Clark, counsel submitted, there is no Australian authority that a court hearing a stay application should assess the strength of the prosecution case.
[18]Bell, 418 [46]. See also Ali, 1102 [121]; Burton, 106 [36].
The respondent’s counsel submitted that the English cases assume that where the prosecution seeks a second retrial, it bears the burden of persuading the trial court that the interests of justice require a further trial.[19] That approach is, however, inconsistent with ‘conventional Australian stay principles’, where the applicant bears the burden of persuasion. Nothing in the Australian authorities requires the prosecution to satisfy a threshold of showing that an offence is of ‘extreme gravity’ before there can be a third trial. In the present case, counsel submitted, the judge was well entitled to find the alleged offending (particularly the sexual penetration charges) was of ‘profound seriousness’, which was relevant to the assessment of the public interest in serious alleged offences being prosecuted. The judge was not, however, required to make any specific finding that the alleged offending was of ‘extreme gravity’. Further, counsel submitted, the judge was correct to decline to make any finding as to whether the prosecution case comprised ‘powerful’ or ‘strong’ evidence. It was neither necessary nor desirable for the judge (or this Court) to assess the strength of the prosecution case. In any event, none of the matters relied on by the applicant, whether alone or in combination, make the prosecution case weak.
[19]See Burton, 106 [34].
Counsel for the respondent contended that the observations in Clark about so-called ‘push button’ trials having a potential for unfairness and oppression were taken into account by the judge, who correctly noted that the legislative scheme permitting this course was introduced precisely so that child complainants were not required to absorb failures in the trial process. There is nothing oppressive or unfair about the fact that the proposed second retrial would rely on prerecorded evidence.
Finally, although senior counsel in oral submissions accepted that there may be cases where to retry an accused for a third time after two previous ‘hung’ juries would ‘amount to such oppression that it warrants a stay’, he contended that ‘this is not one of them’. Counsel submitted that none of the matters identified by the applicant in the present case would make the proposed retrial unfair or oppressive, so as to necessitate the drastic remedy of a permanent stay.
Discussion
By reason of s 297(1) of the CPA, this Court may give leave to appeal against an interlocutory decision if satisfied that it is in the interests of justice to do so, having regard to several enumerated criteria.
In Ballard,[20] a case where a permanent stay of a trial was sought after verdicts had been rendered in two previous trials, this Court made clear that, in light of GLJ, the standard of appellate review that the Court must apply when considering an order granting or refusing a permanent stay of a proceeding is the ‘correctness standard’ described in Warren v Coombes.[21] This Court must, when reviewing a judge’s decision to grant or refuse a permanent stay, decide the case for itself. Thus, if the Court considers that the trial judge was in no better position to decide the particular question, or if, after giving full weight to his or her decision, the Court considers that it was wrong, the Court must give effect to its own judgment.[22]
[20]Ballard, [42] (Priest JA, Walker JA and Croucher AJA agreeing).
[21](1979) 142 CLR 531, 552 (Gibbs ACJ, Jacobs and Murphy JJ).
[22]Ballard, [46], citing Warren v Combes (1979) 142 CLR 531, 552. See also Koschier v R [2024] NSWCCA 24, [36] (Bell CJ, Harrison CJ at CL and Chen J agreeing).
With respect to the principles that guide the grant of a permanent stay, it was said in Ballard[23] that
it is well settled that a court should stay criminal proceedings only if, having regard to all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness, or if their continuation would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.[24] In order to justify a permanent stay the circumstances must be exceptional,[25] a permanent stay being a measure of last resort.[26] There must be a fundamental defect going to the root of the trial of such a nature that nothing that the trial judge could do in the conduct of the trial could relieve against its unfair consequences.[27] To obtain a stay, an accused person must demonstrate that the circumstances are such that any trial necessarily will be unfair, so that a conviction would bring the administration of justice into disrepute.[28] The court must have regard to the substantial public interest in having those charged with serious criminal offences brought to trial as well as the fundamental right of an accused to a fair trial and the need to maintain public confidence in the administration of justice.[29] A court’s power to grant a permanent stay stems from the court’s inherent jurisdiction to protect the integrity of its processes where the administration of justice so requires.[30]
[23]Ballard, [47].
[24]Walton v Gardiner (1993) 177 CLR 378, 392 (Mason CJ, Deane and Dawson JJ) (‘Walton’). See also Jago v District Court of New South Wales (1989) 168 CLR 23 (‘Jago’); R v Glennon (1992) 173 CLR 592; Dupas v The Queen (2010) 241 CLR 237 (‘Dupas’); R v Edwards (2009) 255 ALR 399 (‘Edwards’).
[25]Williams v Spautz (1992) 174 CLR 509, 529.
[26]Strickland (a pseudonym) v DPP (Cth) (2018) 266 CLR 325, 409 [248], 415 [264] (Edelman J); Tuteru, MVR 147, [65]. See also Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132, 141–2 [20]–[22] (Kiefel CJ, Gageler, Keane and Gordon JJ) (a non-criminal case).
[27]Barton v The Queen (1980) 147 CLR 75, 111 (Wilson J); Jago, 34 (Mason CJ); Dupas, [35]; Haris (a pseudonym) v The King [2023] VSCA 205, [49]–[50] (Emerton P, Beach and McLeish JJA) (‘Haris’).
[28]Jago, 34 (Mason CJ).
[29]Walton, 395–6; Tuteru, MVR 148, [69]; Haris, [53].
[30]Tuteru, MVR 147, [64].
In Walton, Mason CJ, Deane and Dawson JJ, rejected the notion that the jurisdiction of a court to stay proceedings is confined to cases in which the proceeding would be unfair or in which it had been brought for an improper purpose, expressing the view that a court may stay proceedings if satisfied that the continuation of the proceedings would be ‘so unfairly and unjustifiably oppressive’ as to constitute an abuse of process, or if the continuation of the proceedings ‘would involve unacceptable injustice or unfairness’.[31] Their Honours made it plain that the jurisdiction to stay proceedings on grounds of abuse of process ‘extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness’.[32] They noted that at least three members of the Court in Jago rejected ‘the narrower view’ that a court’s power to protect itself from an abuse of process in criminal proceedings ‘is limited to traditional notions of abuse of process’.[33] And they said:[34]
Mason CJ considered that a court, ‘whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves’, possesses the necessary power to prevent its processes being employed in a manner which gives rise to unfairness.[35] His Honour quoted, with approval, the following remarks of Richardson J of the New Zealand Court of Appeal in Moevao v Department of Labour:[36]
‘public interest in the due administration of justice necessarily extends to ensuring that the Court’s processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court’s processes may lend themselves to oppression and injustice.’
[31]Walton, 392.
[32]Ibid 392–3.
[33]Ibid 393.
[34]Ibid 393–4.
[35][Jago, 28].
[36][1980] 1 NZLR 464, 48l.
In the present case, the applicant sought to rely on principles to be derived from the English cases Bell and Burton, both of which concerned a second retrial of an accused person after the jury, in each of two previous trials, had been unable to agree on a verdict. In Bell, which concerned the trial of an accused for murder, the court held that there was no unfairness or oppression involved in a third trial of the accused, so that his conviction on that charge was safe. Having so concluded, the court observed:[37]
We doubt the value of offering further guidance on the circumstances in which a second re-trial may be appropriate. We shall confine ourselves to reminding the Crown that the jurisdiction which permits a second re-trial after two jury disagreements in circumstances like the present must be exercised with extreme caution. The broad public interest in the administration of criminal justice leads us to the clear view that a second re-trial should be confined to the very small number of cases in which the jury is being invited to address a crime of extreme gravity which has undoubtedly occurred (as here) and in which the evidence that the defendant committed the crime (again, as here), on any fair minded objective judgment remains very powerful.
[37]Bell, 418 [46].
Burton concerned a second retrial of an accused who was convicted of conspiracy fraudulently to evade the prohibition on the importation of a ‘class A drug’, cocaine. The court, in allowing the appeal and quashing the conviction, noted:[38]
It seems to us therefore that the authorities indicate that whilst the circumstances identified at [46] of Bell will usually be a sufficient test of where the interests of justice lie in most cases, a wider consideration of such interests stretching beyond those factors may be required in some cases. In any case there must be an informed, dispassionate and searching examination of why a third trial is justified, when there were no irregularities in the first two.
[38]Burton, 104 [22].
In Clark, this Court was concerned with a case of an applicant, who was charged with sexual penetration of a child under 16 years of age. In three previous trials, juries in the County Court had been unable to agree, or to reach a majority verdict, and were therefore discharged without verdict. The prosecution intended to conduct a fourth trial, on the same evidence as in the previous trials. On application by the defence, the trial judge refused to grant a permanent stay of the proceeding. This Court upheld an appeal from that decision on the basis of specific error, and remitted the application for a stay to be heard by a different judge in the County Court. In reaching that conclusion, it is relevant for present purposes to note that the court was critical of the judge for failing to take into account both the decision of the English Court of Appeal in Bell, and the prosecutorial guidelines in many other common law jurisdictions, which made it clear that even a second retrial should be a ‘rare and exceptional occurrence’. The Court (Weinberg AP, Ashley and Coghlan JJA) observed[39] that
the judge’s ruling was extremely dismissive of the fact that prosecutorial guidelines in many other common law jurisdictions made it clear that even a second retrial should be a rare and exceptional occurrence. Of course, the judge had been invited by the prosecutor to ignore both Bell, and the guidelines. But she should not, with respect, simply have accepted that invitation. Mature consideration would have pointed up their relevance. The guidelines, though obviously not binding in this State, do provide an indication of just how the most eminent prosecuting authorities throughout the common law world view the balancing exercise to be undertaken in relation to even a second retrial. To that extent, they represent an important component of the reasoning to be adopted in assessing where the public interest lies.
[39]Clark, 524 [66].
It is clear from the views expressed in Clark, that the dicta in Bell, applied in Burton, should not be considered to have the force of a statutory mandate in the determination of an application for a stay of a criminal proceeding. Nevertheless, the views expressed in those cases are relevant, since they identify the inherently oppressive nature of a third trial (or second retrial) of the same charge, in circumstances where, in two previous trials, juries have not been unanimously satisfied, beyond reasonable doubt, of the guilt of the accused on the charge which is to be the subject of the third trial.
Plainly, the principles which guide the determination of whether a criminal proceeding should be stayed as an abuse of process neither sanction nor require the inflexible application of the dictum in Bell to the effect that a second retrial should be confined only to the small number of cases in which the offence charged is one of ‘extreme gravity’, and in which the evidence against the accused is ‘very powerful’. Although those two factors might be of some relevance,[40] whether a third trial on the same charges in any given case will constitute an abuse of process must fall to be determined on a close and careful consideration of the specific facts of the case.
[40]We would make clear, however, that we reject the notion that the prosecution bears an onus ‘to justify the proposed course of a second retrial’. See Burton, 106 [34].
In order to apply the principles discussed, it is necessary to set out in more detail the circumstances concerning the earlier trials, and their relationship to the intended third retrial.
As noted, the first trial was conducted between 13 April and 26 April 2023, on 16 charges: 12 charges of sexual assault of a child under 16 years of age, and four charges of sexual penetration of a stepchild. The offending, involving the same complainant, was alleged to have taken place between 27 February 2019 and 1 December 2021, and related to nine alleged incidents described by the complainant. Significantly, the jury returned a majority verdict of not guilty on two charges of sexual assault, and on one charge of sexual penetration, and the applicant was acquitted by direction of the trial judge on a third charge of sexual penetration. The offences that were the subject of the four charges on which the applicant was acquitted, related to two of the nine alleged incidents of offending. On the remaining 12 charges, the jury could not agree on verdicts, either unanimously or by majority.
A second trial (or first retrial) commenced on 4 September 2023, but resulted in the jury being discharged after evidence relating to charges upon which the applicant was acquitted was wrongly introduced.
The third trial (or second retrial) was conducted before the same judge between 7 September and 15 September 2023 on the second indictment, containing ten of the outstanding twelve charges, relating to six alleged incidents: seven charges of sexual assault of a child under 16 years of age, and three charges of sexual penetration of a stepchild. Of significance, the jury — which, at the time of the verdict, comprised 11 members — unanimously acquitted the applicant on charge 7 (sexual penetration of a stepchild), but could not agree on a unanimous, or majority, verdict on the other nine charges.
Thus, the intended fourth trial (or third retrial) will relate to nine of the original 16 charges in respect of which the applicant first stood trial: seven charges of sexual assault of a child under the age of 16 years, and two charges of sexual penetration of a stepchild. The offences that are the subject of those charges are alleged by the complainant to have been committed in the course of five separate incidents.
It is also relevant to note the circumstances in which the jury deliberated, and were ultimately unable to reach a verdict on the bare majority of the charges, in each of the two trials that resulted in partial verdicts.
In the first trial, the jury was given a majority verdict direction after deliberating for approximately five hours and 35 minutes. Subsequently, by agreement of both defence and prosecution, the judge did not give the jury a perseverance direction, since the jury was emphatic that it was at an impasse, with no prospect of reconciling its differences. In the result, that jury was discharged after deliberating for a little over 12 hours.
In the third trial — the second trial did not go to verdict — the jury was given a perseverance direction after deliberating for approximately six hours and 30 minutes. Subsequently, the jury was given a majority verdict direction after eight hours and 20 minutes’ deliberation. Ultimately, that jury was discharged after having deliberated for 10 hours and 40 minutes.
The net result of the foregoing is as follows. The applicant originally stood trial on 16 charges. He has been acquitted on five of those charges, and the prosecution has decided not to proceed with another two of the charges.
On the remaining nine charges, the subject of the pending trial, juries in two trials have been unable to reach either unanimous or majority verdicts. The two juries deliberated on the nine charges (in addition to the other charges, which were before them) for a combined total of almost 23 hours. In the first trial, it was common ground that it was futile to provide the jury with a perseverance direction. In the second trial, such a direction was given, but the jury was still unable to reconcile its differences on any of the outstanding nine charges.
Moreover, in that context, it is of some significance that the applicant was held on remand in respect of the charges for the entire period in which the previous three trials were conducted. No doubt that period of some 20 months during which the applicant was detained in custody on remand, without final resolution of the case against him, exacerbated the stress and anxiety he would inevitably have experienced as a result of the process in which he was the subject of three criminal trials during that time.
It is also relevant to understand the reason why the applicant was on remand during that period. After the complainant participated in the first VARE interview and the applicant was interviewed by police on 10 February 2022, he was released on bail. After the complainant underwent a second VARE on 16 February 2022, however, the applicant was again arrested and, on that occasion, was refused bail. We were informed by counsel for the applicant — without demur by the respondent’s counsel — that the applicant is a citizen of the United States of America; and that, since the applicant no longer had a fixed address in the jurisdiction at the time that the complainant’s second VARE was conducted, he was refused bail. It is further relevant that in the two trials which were completed, the jury acquitted the applicant on all the charges that were based on the complainant’s second VARE, which, it seems, was the precipitating cause of his detention on remand.
It must be acknowledged that the charges each allege offending that is particularly serious. The complainant was the stepchild of the applicant, and it is quite apparent, from the applicant’s interview with police, that he was in a position of proximity and trust with her. It is not possible, or appropriate, in the present application, to assess the merits of the charges. For present purposes, it is sufficient to proceed on the basis that the evidence in relation to each of them is neither particularly strong nor particularly deficient. On any view, however, there were issues which stood in the path of the jury reaching a unanimous decision in relation to each of those charges.
The particular concern in the present case is the issue of whether it will be an abuse of process to subject the applicant to a fourth trial (or third retrial) in the circumstances outlined above.
The law properly recognises that trials of offences of the kind charged against the applicant involve particular strain and stress for complainants. It is for that reason that appropriate provision has been made to pre-record the evidence of complainants, and other witnesses, in order to protect them from the stress of being face to face with the person against whom they make the accusation, and being required to make it before an audience comprising the jury and others.
But it must also be borne in mind that in each criminal trial, the accused person — who is presumed to be innocent unless and until proven guilty beyond reasonable doubt — is also subject to at least a commensurate degree of strain and anxiety. The accused is almost always required to be in court, placed in the dock, facing the jury, and attending to the evidence adduced in support of the prosecution case. In most cases, and in particular the present case, the accused is on trial for offences, which could only be regarded as serious, and which involve allegations of particularly egregious and morally reprehensible conduct. It is in those circumstances that the applicant, if presented again for trial, would be required, for the fourth time, to face such charges, having already experienced the strain of two previous juries, following deliberations lasting some 23 hours, being unable to be satisfied by majority, beyond reasonable doubt, of his guilt of those charges, in addition to the empanelment and subsequent discharge of another jury due to the failure of the prosecution to properly edit the complainant’s VARE after the first trial.
Further, it is to be noted that the only verdicts which have been returned against the applicant were five verdicts (including one by direction) of not guilty, and the prosecution has also abandoned two of the other charges that it originally brought against him. There is a legitimate concern that in cases such as this, the requirement that the applicant face a jury for a third occasion does involve, to a material degree, the concept of a ‘push button’ trial discussed by this Court in Clark.[41]
[41]Clark, 526 [74].
In conclusion, and at the risk of repetition, from the foregoing discussion it may be seen that there are three points of particular significance bearing on the resolution of this particular case.
First, the nine charges, which the respondent seeks to prosecute against the applicant, have already been the subject of two previous trials in which partial verdicts have been returned. In each of those trials, the jury undertook deliberation in respect of those charges, and other charges that were before it, for a substantial period of time. In each trial, the jury was entitled to return a majority verdict. In one of the trials, a perseverance direction was given to the jury. In each of the two trials, at least two (if not more) members of the jury were not satisfied, beyond reasonable doubt, of the guilt of the applicant on any of the nine charges, which are now sought to be prosecuted. In each of the two trials, the only verdicts that were returned by the jury were verdicts of acquittal in respect of five of the original 16 charges brought against the applicant. The prosecution now seeks to prosecute a third trial on the nine remaining charges against the applicant, based on the same evidence that was adduced before the jury in each of the two previous trials.
In those circumstances, a third such trial bears the hallmarks of a ‘push button’ trial, as described by this Court in Clark. In circumstances where — over the not inconsiderable distance that this matter has travelled — the respondent has succeeded only in securing verdicts of acquittal (including two charges of sexual penetration of a stepchild), it is difficult not to see this case as one where, in colloquial terms, the respondent seeks to ‘roll the dice’ again on the nine remaining charges in a rerun of the charges on which it was not able to satisfy a majority of the jury of the guilt of the applicant in each of the previous two trials.
Secondly, as discussed, this is now the fourth trial, which the applicant would be required to face in respect of the same charges that were the subject of the three previous trials. The applicant has undergone two completed trials, in each of which he was required to wait for the verdicts of the jury during substantial periods of deliberation (and was, significantly, held in custody for all of that time and more). The allegations contained in the charges were serious. While it is inappropriate to determine an application, such as the present, based on considerations such as sympathy, nevertheless, it is relevant, and appropriate, to take into account the circumstances of the applicant in the previous trials in determining whether, ultimately, a fourth trial would constitute an unfair and unjustifiable oppression of him in the circumstances of the case.
Thirdly, and taking into account the two previous considerations, it is relevant, as observed by this Court in Clark, that there are eminent prosecuting authorities throughout the common law world who consider that a second retrial should only occur in rare and exceptional cases. As noted above, the respondent conceded in argument that circumstances may arise where a permanent stay is required after two hung juries.[42] Similarly, we do not decide in this case that two hung juries — in all cases — will automatically give rise to a stay (or, for that matter, a presumption that a stay is required). In all cases, the question whether a stay is called for must be resolved by the application of the settled principles referred to above to the specific facts of the particular case.
[42]See [44] above.
Taking into account the combined weight of those considerations, we are driven to the conclusion that a further trial of the nine charges against the applicant would be so unfairly and unjustifiably oppressive as to constitute an abuse of the process.
Conclusion
For the foregoing reasons, the applicant should be granted leave to appeal; his appeal should be allowed; the interlocutory decision should be set aside; and, in lieu, it should be ordered that there be a permanent stay of the nine charges against the applicant.
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