R v FJL
[2014] VSCA 57
•28 March 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0025
| THE QUEEN | Applicant |
| v | |
| FJL | Respondent |
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| JUDGES | REDLICH and OSBORN JJA and SIFRIS AJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 28 March 2014 | |
| DATE OF JUDGMENT | 28 March 2014 | |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 57 | First Revision, 11 April 2014, [86] |
| JUDGMENT APPEALED FROM | The Queen v [FJL] (Unreported, County Court of Victoria, Judge Lacava, 23 January 2014) | |
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CRIMINAL LAW – Director’s application – Leave to appeal against permanent stay of 12 counts of indecent assault on children under 16 years of age – Most recent alleged offending occurred 32 years prior to trial – Whether a case of ‘simple’ delay giving rise to mere presumptive prejudice – Whether possible to address prejudice to accused through procedural steps short of a permanent stay – Gross delay giving rise to specific forensic disadvantage – Possible to address some specific disadvantages through procedural steps – Leave to appeal granted – Appeal allowed in part.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Keating | Mr C Hyland, Director of Public Prosecutions |
| For the Respondent | Mr P Haag with Ms E McKinnon | Mr J Mamone |
REDLICH JA:
I will ask my brother Osborn to deliver the first judgment.
OSBORN JA:
The DPP seeks leave to appeal against an order of Judge Lacava made on 23 January 2014 permanently staying a presentment alleging 12 counts of indecent assault on girls under 16 years of age.
The accused denies each count of sexual assault. He denies any form of sexual attraction to the complainants and asserts that at no stage did he participate in any form of sexual activity with them.
The accused was charged on 27 November 2008 and was committed for trial on 24 July 2009. For reasons which are not entirely clear (but include the very heavy workload confronting successive County Court judges on circuit at Shepparton), the trial did not commence until 20 January 2014. As the trial judge remarked this delay in itself was completely unacceptable.
More fundamentally however the offending in count 1, being the first in issue, is alleged to have occurred between 15 January 1976 and 14 January 1978, during a period of 38 to 36 years before the trial. Uncharged acts were also alleged dating back to 1972. The offending in count 12 being the most recent alleged offending occurred between 1 December 1981 and 31 January 1982, some 32 years prior to trial.
The alleged offending was constituted by assaults on the respondent’s two stepdaughters. The elder daughter SB was born on 15 January 1966 and was between 10 and 12 years of age at the time covered by count one. Count 12 also involved SB and the alleged offending occurred at about the time of her 16th birthday.
The younger daughter LM was born on 31 March 1969. She is the complainant in counts 5, 6 and 11. The offending in count 5 is alleged to have
occurred when she was between eight and nine years of age. The offending in count 11 is alleged to have occurred when she was between 12 and 13 years of age.
On any view the delay between the alleged offending and the matters coming to trial is extreme and sufficient to give rise to some degree of probable forensic disadvantage.
Further, it was submitted that evidence had been lost relating to complaints in 1982 made by LM to a general practitioner and with respect to a subsequent police investigation which resulted in no prosecution of the respondent at that time.
The trial judge set out the principles relating to the granting of a proposed stay in such cases. He then went on to examine the evidentiary basis on which the Crown case was put forward in respect of each count and to consider the specific forensic disadvantages the respondent suffered as a result of the effluxion of time in respect of each count.
Ultimately he accepted that given the nature of the Crown case and a substantial lack of contextual and other circumstantial evidence the passage of time had resulted in a series of forensic disadvantages to the respondent which could not be cured by directions to the jury.
Because of this lack of evidence, there is a significant, in my view, forensic disadvantage to the accused in the running of this trial. Collectively, the evidentiary gaps which, in argument were described as an evidentiary abyss, amount to the loss of a chance to the accused to explore the circumstances of the offending alleged in each count in detail.
There is a loss of the chance to identify the occasion of the allegations with any specificity at all. There is a loss of a chance to make any defence other than a simple denial. There is a loss of a chance to establish an alibi. There is a loss of a chance to call evidence contradicting the broader evidence of the complainant. There is a loss of the chance to obtain documents that may have assisted the defence and, collectively, it seems to me, that the only way in which the disadvantage can be addressed is for the accused to assume the burden of proof on these matters. That is not a fair trial.
I accept that his Honour did not err in general approach. In particular, he was correct to consider the issue by reference to each count before reaching his overall conclusion as to unfairness. In my view, however, whilst the trial judge was correct to conclude that it was necessary to stay one of the counts in respect of which specific evidentiary prejudice could be identified, forensic disadvantage could be adequately guarded against with respect to the other counts by a combination of measures.
In particular it was open to the Court:
·to exclude the evidence of uncharged acts;
·to exclude the evidence of complaint in 1982 to a general practitioner and the police save in rebuttal of any suggestion of recent invention by LM or her mother;
·to give detailed forensic disadvantage directions pursuant to s 165B of the Evidence Act 2008 which went beyond elaborating potential presumptive prejudice and addressed each of the deficiencies in the contextual evidence which his Honour the trial judge identified; and
·to sever the presentment in order to minimise the cumulative forensic disadvantage identified by the trial judge.
The fundamental reason for this conclusion is that the Court should not in effect decline jurisdiction by way of a stay, unless it is plainly necessary to do so as a matter of fairness to the accused and no other procedural measures are available to avoid the prejudice in issue.
Before turning to the facts of the case, I shall say something further about the principles underlying this rationale and the grounds of appeal in this case.
I interpolate that because the trial judge’s stay order was effectively dispositive of the proceeding I accept that leave to appeal should be granted in this matter[1] whatever view is taken of its ultimate merits.
[1]See s 297(1)(c) of the Criminal Procedure Act 2009.
Principles
The exercise of the power to stay must be exceptional because it results in effect in a refusal to exercise jurisdiction and the primary responsibility for deciding whether criminal proceedings should be maintained lies with the Executive and not with the Court.[2]
[2]Jago v District Court (NSW) (1989) 168 CLR 23, 61 (Deane J), 76 (Gaudron J).
In Jago v District Court (NSW),[3] Mason CJ said:
In the safeguarding of the interests of the accused in the manner I have described, the touchstone in every case is fairness. As appears from Toohey J's reasons for judgment and the majority judgments in the Court of Appeal, the Australian common law does not recognize the existence of a special right to a speedy trial, or to trial within a reasonable time, which relies for its operation not upon actual prejudice or unfairness but upon a concept of presumptive prejudice. Because there is no constitutional guarantee of a speedy trial, the remedies are discretionary and necessarily relate to the harm suffered or likely to be suffered if appropriate orders are not made.
The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial. At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused. In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare.
To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’. Where delay is the sole ground of complaint, an accused seeking a permanent stay must be ‘able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute’. I agree with Toohey J that no such case has been made out in the present appeal. For that reason, and because there is no right to a speedy trial or trial within a reasonable time independent of the right to be protected from unfairness resulting from undue delay, I would dismiss the appeal.[4]
[3]Ibid.
[4]Ibid 33-4 (citations omitted) (emphasis added). See also Glennon v R (1992) 173 CLR 592, 605 (Mason CJ and Toohey J); Walton v Gardiner (1993) 177 CLR 378, 392-4 (Mason CJ, Deane and Dawson JJ); R v Edwards (2009) 255 ALR 399.
Deane J expressed the five main heads of relevant circumstances and considerations to which a Court should advert in deciding whether proceedings should be stayed on the ground that the effect of delay on the part of the prosecution is that any trial will necessarily be an unfair one in similar terms to Mason CJ:
(i) the length of the delay; (ii) reasons given by the prosecution to explain or justify the delay; (iii) the accused's responsibility for and past attitude to the delay; and, (iv) proven or likely prejudice to the accused. The fifth is the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime (see Reg v Clarkson;[5] Carver v Attorney-General (NSW)[6]).[7]
[5][1987] VR 962, 972.
[6](1987) 29 A Crim R 24, 32.
[7]Jago v District Court (NSW) (1989) 168 CLR 23, 61 (Deane J) (citations in original).
In the present case the length of delay is very extended and such as to give rise to doubts as to the accuracy of aspects of memory simply as a matter of common human experience. There are no adequate reasons advanced by the prosecutor to justify the delay and the delay is not the responsibility of the respondent.
The critical factors in these circumstances are on the one hand the proven or likely prejudice to the accused and on the other hand the public interest in the prosecution of the counts and conviction of the guilty of crime.
The principles stated in Jago referred to above were applied in Walton v Gardiner.[8] In turn, in R v Edwards[9] the High Court referred to Walton and emphasised that what was required to justify a stay was not the possibility but the probability of unacceptable unfairness.
A majority of the court approved each of the formulations of the test applied by members of the Court of Appeal; ‘whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness’, or whether the ‘continuation of the proceedings would be ‘so unfairly and unjustifiably oppressive’ as to constitute an abuse of process’. Their Honours observed that it had been made plain by the Court of Appeal that the court would only be satisfied that continuation of the proceedings constituted an abuse in an exceptional or extreme case.[10]
[8](1993) 177 CLR 378, 392-4 (Mason CJ, Deane and Dawson JJ).
[9](2009) 255 ALR 399.
[10]Ibid [23] (emphasis in original; citations omitted).
The relevant notion of prejudice must be assessed on a case by case basis but as a matter of general principle the High Court further stated in R v Edwards:
Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.[11]
[11]Ibid [31] (citations omitted).
In Audsley v The Queen,[12] Kaye AJA (with whom Neave JA and Lasry AJA agreed) referred to a series of cases relating to missing items of evidence and stated:[13]
The foregoing review of the authorities establishes the following propositions relevant to this appeal:
(1)In order for ground 1 to succeed, the appellant must demonstrate that the absence of the property, which was the subject of the charges on which he was convicted, was likely to have had a significant effect on his right to a fair trial.
(2)It is insufficient for the appellant to demonstrate that the evidence, if available, might have resulted in his acquittal on any of the charges.
(3)The effect, of the missing evidence, is not to be assessed in a vacuum or in isolation. Rather, it must be viewed in the context of the evidence which was in fact adduced, and in particular by considering whether, in light of both that evidence, and the missing evidence, the trial of the accused was fair.[14]
[12][2013] VSCA 41.
[13]Ibid [55] (citation in original).
[14]See also R v Williams (2001) 1 Qd R 212, [7]; Thwaites v Western Australia [2004] WASCA 197, [64]–[66] (Templeman J).
It is also important to note that in Jago both Brennan and Gaudron JJ emphasised the procedural powers of a judge to avoid obstacles to a fair trial as crucial or critical to striking an appropriate balance. Brennan J said:
When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.[15]
[15]Ibid 47 (Brennan J) (emphasis added).
Gaudron J said:
Another feature attending criminal proceedings and relevant to the grant of a permanent stay thereof is that a trial judge, by reason of the duty to ensure the fairness of a trial, has a number of discretionary powers which may be exercised in the course of a trial, including the power to reject evidence which is technically admissible but which would operate unfairly against the accused. The exercise of the power to reject evidence, either alone or in combination with a trial judge's other powers to control criminal proceedings, will often suffice to remedy any feature of the proceedings which might otherwise render them unjust or unfair. The existence and availability of these powers, when considered in the light of the necessarily limited scope of the power to grant a permanent stay, serve to indicate that a court should have regard to the existence of all its various powers, and should only grant a permanent stay if satisfied that no other means is available to remedy that feature which, if unremedied, would render the proceedings so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay.[16]
[16]Ibid 77-8 (Gaudron J) (emphasis added).
The grounds of appeal
In the present case the application for leave to appeal against the permanent stay is made on the following grounds:[17]
[17]A certificate was granted by the trial judge under s 295(3)(b) of the Criminal Procedure Act 2009 on 31 January 2014.
1.The learned trial judge erred in the exercise of his discretion to permanently stay the trial. His Honour's discretion miscarried because:
(i) The Learned Trial Judge gave undue weight to:
a.The collective absence of a number of items of evidence, caused by delay; and
b.The evidence of fact of complaint made by SB, in 1981 to Dr Goy and Constable Braden;
(ii)The Learned Trial Judge concluded that the above factors amounted to the kind of injustice that warrants a permanent stay of the trial; and
(iii)The Learned Trial Judge concluded that the above factors combined to make this an exceptional or extreme case.
It is submitted by the applicant first that this was a case of ‘simple delay’ and secondly that any prejudice to the respondent resulting from the delay was capable of being addressed by procedural steps and in particular directions to the jury with respect to forensic disadvantage.
In fact, this was a case of inordinate delay in which the judge sought to identify specific forensic disadvantage as distinct from presumptive prejudice or probable general disadvantage in respect of each count.
As I have said, his Honour did not err in taking this approach. It is in my view necessary to examine the evidentiary unfairness arising from delay with respect to the evidence in issue relating to each count. In turn the second question of whether any unfairness identified can be met by steps short of a stay must then be considered.
If unfairness is identified which cannot be adequately addressed by procedural steps then the appropriateness of the stay order may still be open to challenge. But, as the respondent submits, if these intermediate conclusions are reached and unfairness which cannot be addressed adequately by procedural steps is established then the ultimate exercise of the discretion will be difficult to disturb. It is not enough that this Court might have reached a different conclusion in weighing up the discretionary factors bearing on the ultimate decision. In Joud v R,[18] Ashley, Neave and Weinberg JJA put it this way:
The applicants must establish that his Honour acted on an incorrect view of the facts, or applied the wrong principles, for example by taking account of irrelevant matters or failing to have regard to relevant matters.[19] In addition, if his Honour’s decision is clearly wrong or unjust, it would be open to this court to infer that the discretion had been improperly exercised.[20]
[18](2011) 32 VR 400.
[19]See also Glennon v R (1992) 173 CLR 592, 600 (Mason CJ and Toohey J).
[20]Joud v R (2011) 32 VR 400, 440, [133] (citation in original).
The uncharged acts
The trial judge stated the initial background facts alleged by the Crown as follows:
The complainants, as I have said, are sisters: SB, born 15 January 1966, and LM, born 31 March 1969. During the period of the alleged offending the accused was the de facto partner of the complainant's mother, whom I shall refer to as VR. The family consisted of the complainants and their two brothers N and S. N and S are a product of the union of the accused and VR.
In 1972 the family moved from Victoria to Queensland. It is part of the Crown case that the charged acts were preceded by a number of uncharged acts which for jurisdictional reasons cannot be proceeded with in Victoria; however, the Crown wishes to lead evidence at trial of the uncharged acts both as to context and to support applications which it has foreshadowed by notice to lead that evidence as tendency evidence, not coincidence evidence.
In her police statement SB describes an incident occurring in Mackay, Queensland, when, while they were living in a caravan, the respondent took her to get ice cream and after stopping the car put his hand in her pants. She further describes similar molestation when the family lived in a house in West Mackay, and at Mumburra.
His Honour ultimately concluded that it would be unfair to proceed on the basis of the 42 year old recollection of the complainant as to these matters.
It is plain that the delay in issue is gross. For present purposes however, it is sufficient first to say that the uncharged acts alleged to have occurred during the period when SB was between the ages of six and 10 years old were capable of exclusion from evidence and could not of themselves justify a stay. Counsel for the respondent conceded this in the course of argument. Secondly, it was open to the trial judge to conclude that if the trial proceeded the evidence of the uncharged acts should not be admitted because of a lack of significant probative value[21] and because its probative value was outweighed by the danger of unfair prejudice to the respondent.[22] The deficiency in probative value and the potential for prejudice derive directly from the elapsed time and insofar as prejudice is concerned the complainant’s age at the time in issue. As to the first aspect, she herself says at one point in her police statement concerning these events ‘I don’t know if I have blocked things out’. Further and more fundamentally, it was open to the trial judge to consider that the respondent faced obvious forensic disadvantage in contesting the allegations because of the combination of their generalised nature and the lapse of time.
[21]Evidence Act 2008 s 97(1)(b).
[22]Evidence Act 2008 s 137.
Count 1
His Honour continued the account of background matters as follows:
In 1976 the family returned to Victoria. They moved in with the accused's parents, who lived at an address at 7 Station Street, Kyabram, referred to in the summary as Station Street. Station Street had a bungalow in the back garden. The accused, VR and the complainants' brothers stayed in the bungalow. The complainants shared a double-bed in a room opposite the accused's parents.
In Count 1 it is alleged that that offence occurred between 15 January 1976 and 14 January 1978. It is alleged that when the complainant was ten or 11 years of age she was alone in her bed at Station Street when the accused came into the room and got into the bed with her. He pulled down her pants and inserted his finger into her vagina. She told him it was wrong and that he should not be doing it to her. He threatened her, stating, ‘Look at your mother now. You will only make things worse and she will hate you forever and you will break up the family.’
His Honour concluded with respect to this evidence:
Count 1 is alleged to have occurred at Station Street, Kyabram. It is alleged to have occurred in the bedroom of the accused's parents' home. There is no evidence about the layout of the home. The offending is alleged to have occurred when others were present in the home. There is no specific time nominated, nor is any evidence given. The parents of the accused are deceased and their evidence could not assist. There is no evidence of any exact address. There is no evidence of any attempt to locate the property and make observations of it.
In my view the death of the respondent’s parents gives rise to incurable prejudice with respect to this count. The offending is said to have occurred when SB and her sister slept in a bedroom physically separate from the bungalow in which the respondent was living or sleeping and adjacent to the grandparents’ bedroom. The loss of the potential to call evidence from the complainant’s grandparents is, in these circumstances, a probable forensic disadvantage which is incurable.
Count 2
His Honour summarised the Crown case as follows:
Count 2 is alleged to have occurred between 15 January 1976 and 14 January 1979. During 1976 the family moved to Shepparton. They lived in a house at 26 Wilmot Road, herein after referred to as Wilmot Road. The complainant and her sister shared a bed. When the complainant was aged between ten and 12 years the accused came into the bedroom at night. Her mother and sister were present in the house at the time.
The prosecution alleges the complainant pretended to be asleep and the accused put his hand down her pants, pushed her legs apart and inserted his finger into her vagina. The complainant did not call out to her mother for help because she was scared of the accused. The complainant recalls that this conduct occurred on a number of occasions at Wilmot Road.
The trial judge concluded in relation to this evidence:
Charge 2 is alleged to have occurred at Wilmot Road. There's no evidence about the property again. Again there is no plan of the property. The offending is alleged to have occurred in circumstances where the complainant's mother was at work. There is no evidence from her employer about her hours of work. There is no evidence to try to identify whether the offending occurred whilst the mother was at work or otherwise. There were four children at home; no evidence has been obtained from them.
There is no evidence as to the layout of the property, as I have said. There is no evidence as to who slept where. There is no evidence from anyone as to what they were doing at the time when the alleged offending occurred. There is no evidence at all about the comings and goings of the various persons present in the property, especially the accused and his partner, VR, whether they were at work, whether they were working overtime, or whether they were engaged in assisting children with sporting pursuits et cetera.
The complainant’s evidence was that her mother was present in the house at the time, and his Honour’s observations concerning lack of evidence in this regard are misconceived. Nevertheless in essence, his Honour identified a lack of contextual circumstantial evidence relating to the alleged offending. The lack of detailed evidence in this regard falls to be considered in what might fairly be described as circumstances of general forensic disadvantage as a result of the intervening delay of between 37 and 35 years.
The respondent also submits that SB acknowledged some doubts as to the accuracy of her memory in cross-examination which must also go to the fairness of allowing the case to be put on the basis proposed by the Crown.
I place little weight upon this latter factor. In substance, SB acknowledged no more than problems with her memory when under stress in situations like the courtroom situation, occasional vagueness associated with tiredness and some difficulty in recalling dates.
Likewise, I am not persuaded that the matters identified by his Honour with respect to contextual detail were not susceptible of a detailed forensic disadvantage direction. A direction could be given enumerating each of the matters identified by the trial judge and it would be open to the judge to comment upon them individually and as to their cumulative effect. The evidentiary issues are straightforward and I am not persuaded they would not be understood by a jury.
Counts 3 and 4
His Honour describes the alleged circumstances of this offending as follows:
Counts 3 and 4 also relate to the complainant SB and are alleged to have occurred between 1 January 1977 and 31 December 1978. It is alleged that the accused was at that time employed at Stegbar Windows and was working on a house in Kyabram. It is alleged he took the complainant with him to the house, which was unoccupied and under construction. He took her into a dark area of the house. It is alleged she was standing up against the wall and the accused pushed her legs apart and inserted his finger into her vagina, Count 3.
It is alleged he put her hand onto his penis over the top of his clothing, Count 4. It is alleged he said to her, ‘See what you do to me? You make me hard.’ She pulled her hand away and ran from the accused, crying, and went and sat in the car. It is alleged the accused then drove back to Shepparton, where he said to her, ‘If you tell me (sic) your mother, I will kill her.’
After considering this evidence his Honour concluded:
Count 3 relates to offending alleged to have occurred at a house visited by the accused in his capacity as an employee of Stegbar Windows. No evidence is available from Stegbar Windows as to the circumstances, duties, hours of employment and type of employment of the accused. No records have been produced by Stegbar Windows. No records have been produced which show whether or not indeed there were any homes which he might be visiting in any capacity as an employee of Stegbar Windows.
No attempt has been made to locate any house. The complainant makes much of the fact that the offending is said to have occurred in a dark nook of the house; there is no evidence as to whether or not a ‘dark nook’ exists. There is no evidence about why the accused might have gone there, the time that he did so or indeed any evidence at all about his employment.
There is no evidence at all right through this brief of evidence of the employment of the accused or his wife and that is I think very relevant to a proper examination of the facts and circumstances of the offending alleged. There is no evidence as to what type of work the accused did at Stegbar Windows, what his role was, no appointment book, nothing. That applies to Counts 3 and 4.
It is true again that little or no contextual evidence is proposed to be adduced by the Crown. Nevertheless the account of SB is a circumstantial narrative. There is nothing particularly surprising in the existence of a ‘little dark sort of recess’, as SB described it in her evidence, in a house under construction. The fact of the respondent’s employment by Stegbar is deposed to by both SB and VR, the mother of SB. The nature of the employment is described by SB. She postulates that the respondent must have been preparing a quote at Kyabram.
If some issue exists in this regard, the general circumstances of the respondent’s employment were capable of further enquiry and explanation in cross-examination of the Crown witnesses both pre-trial and at trial.
It may be accepted that detailed records of the type postulated by his Honour have not been produced but I am again not persuaded that the matters identified by his Honour were not susceptible of a detailed forensic disadvantage direction adequate to deal with the prejudice which has resulted from the delay in issue.
Counts 5 and 6
Counts 5 and 6 relate to SB’s younger sister, LM.
Counts 5 and 6 relate to the complainant LM and are alleged to have occurred between 31 March 1977 and 30 March 1978. The family then moved to 22 Victoria Street, Shepparton, which I shall hereafter refer to as Victoria Street. On an occasion when the complainant was 8 years of age, V.R., S.B., N and S went shopping. The complainant alleges that she was at home alone with the accused in the lounge room at Victoria Street.
The accused told the complainant that he was going to go to the kitchen to get paper towel. He returned to the lounge room with some paper towel and told her to sit on the couch. He tore the paper towel into squares and allegedly put three squares on top of each other on the floor and told her to take off her knickers. He then told her to get on to the floor on her hands and knees and he got behind her and put his hand around her throat. He allegedly told her to imagine that he was holding a knife to her throat, and that is what would happen if she told her mother.
She was frightened and was looking at the door to the lounge room. It is alleged the accused then took his pants off and put his erect penis between the cheeks of the complainant's bottom, up against her anus. Count 5. He allegedly told the complainant to turn around and she sat on the floor facing him, whilst he knelt in front of her with his erect penis exposed.
It is alleged he then guided her hand onto his penis and moved her hand up and down. It is alleged that she did this until the accused ejaculated into the paper towel. Count 6.
It is alleged he then told her to put her knickers on and throw the paper towel in the toilet. The Crown case alleges the complainant then went from the toilet out the back door and vomited beside the chimney. She hid behind the chimney until the accused came and told her to get into the car, because he was going to pick up her mother.
Whilst this is a detailed circumstantial account of the offending behaviour it is once again put forward in the absence of contextual circumstantial supporting evidence.
His Honour concluded:
Charges 4 and 5 [sic] are alleged to have occurred in a house provided by Federation Insurance. No details have been provided about that house, where it is located, the layout of the house, again a complete dearth of any evidence about the employment. There is evidence of the informant seeking to search for Federation Insurance and he found nothing, which I find quite surprising given that Federation Insurance was previously a very prominent insurer in this country. Again there is no evidence of any layout of the house, no rental records, where it was or all of the circumstances in which the offending alleged might have occurred.
Counts 5 and 6 allege offending in Victoria Street, Shepparton, in the lounge room. Again there is no evidence about the layout of the house. There is no evidence about when the offending occurred, the day of the week, the time, no evidence at all about the general family circumstances, whether they had a car, what type it was. There is no work records available at all for the accused or the complainant's mother.
This conclusion was in part initially incorrect. The location of the house in which the offending occurred was plainly identified as Victoria Street, Shepparton.
The location was described in a police statement by VR. If some real issue exists with respect to the physical disposition of the house, this was again something susceptible to further enquiry and evidence in cross-examination either pre-trial or at trial.
It may again be accepted that documentary evidence of the type identified by his Honour is lacking but in my view, the prosecution evidence was again susceptible to a detailed forensic disadvantage direction adequate to explain to the jury the prejudice to which the respondent was exposed.
Count 7
Count 7 is described by his Honour as follows:
Count 7 returns to the complainant, S.B. and is alleged to have occurred between 1st of January, 1978 and 31 December, 1978. It is alleged that half way through Grade 5, the complainant started playing basketball. The accused was the coach of her team.
During Grade 6, the complainant and the accused were driving to basketball in the early evening. Whilst he was driving, he reached over and put his hand inside her pants and touched her on the vagina.
His Honour concluded:
Charge 7 alleges offending at Wilmot Road. There is no evidence at all about the surrounding circumstances which one would expect to confirm or bolster or further explain the evidence of the complainant.
Whilst it may be accepted there is a lack of contextual detail in the complainant’s evidence, the nature of the occasion of the offending is clearly described. Nor did the cross-examination of SB in camera dispute the fact that A was a basketball coach or that he drove her to basketball. Rather it was put that he became a coach at her request. It may be accepted that the respondent has suffered general forensic prejudice in that in the absence of the identification of a particular date it is now impossible for him to adduce evidence as to his activities on the particular night in question. Nevertheless, the better view is that the deficiency in detail is again one capable of being addressed by a forensic disadvantage direction.
Count 8
His Honour described the basis of count 8 as follows:
Count 8 concerns the complainant, S.B. It is alleged to have occurred between 15 January 1978 and 14 January 1980. When the complainant was 12 or 13 years of age, the accused was employed at Federation Insurance. The accused would allegedly take the complainant with him to work and she would play on the typewriter.
The accused pulled her knickers down to her knees and made her sit on his knee. He allegedly then inserted his finger into her vagina. The complainant recalls that this conduct occurred on two occasions.
SB and VR identified the location of the relevant office as being formerly located upstairs in a building in Maude Street, Shepparton. His Honour concluded:
Charge 8 relates to Federation Insurance and it is alleged that the offending occurred at the accused's place of work. There is no evidence whatsoever about the accused's employment at Federation Insurance: no evidence from any former work colleagues, what his duties were, whether there was a typewriter and desk of the kind that would facilitate the commission of the offence in the way alleged. Again, I say there is a complete dearth of any investigation of those matters. No evidence about the layout of the office whatsoever.
There was no evidence from the accused on the voir dire denying that SB attended work with him nor raising particular aspects of his workplace which would render SB’s account improbable eg absence of a typewriter, immediate continuing proximity of other workers, etc. At present the forensic disadvantage arising from the matters identified by his Honour is no more than presumptive and speculative.
It may be accepted the layout and work practices within the office might bear directly upon the assessment by a jury of the reasonable possibilities concerning the alleged offending but the evidence does not presently establish any specific forensic disadvantage which could not be adequately addressed by a forensic disadvantage direction to the jury.
In my view the unfairness involved in the current evidentiary situation does not go beyond mere presumptive prejudice or general forensic prejudice and could be adequately addressed by a forensic disadvantage direction to the jury.
Count 9
The basis of count 9 was as follows:
Count 9 also concerns the complainant, S.B. and is alleged to have occurred between the same dates. I t is alleged that when the complainant was 12 or 13 years of age, the accused worked afternoon or night shift at the Ardmona Cannery in Mooroopna.
It is alleged that V.R. worked afternoon shift or nightshift at the Ardmona Cannery in Mooroopna. During one evening, it is alleged the accused pulled down the complainant's knickers and made her sit on his knee. He allegedly then inserted his finger into her vagina. V.R. arrived home early from work because she was sick. She was driven home by a friend, Pam Carroll.
Carroll parked outside the house and she and V.R. talked in the car. V.R. then got out of the car and walked up to the front door. The vertical blinds were open and she could see into the lounge room and observed the complainant sitting on the accused's knee. The complainant was upset and crying.
V.R. walked through the door and by the time she was inside the house, the complainant had already gone to her bedroom, and the accused was in the bathroom. The complainant recalls that when the accused saw V.R. open the door, he had instructed the complainant to run to her bedroom. V.R. asked the accused what was going on and he told her that the complainant was upset over something and that he was comforting her.
The complainant recalls that the accused would pull down her knickers, make her sit on his knee and insert his finger into her vagina on regular occasions. This is led as uncharged acts.
His Honour concluded:
Charge 9 relates to offending alleged to have occurred shortly before the complainant's mother arrived home from work. As I have said repeatedly, there is no evidence about her work records. She is said to have been driven home by one Pam Carroll. There is no statement from her. Again, no evidence about the layout of the house, in which the offending here is said to have occurred.
VR gives direct evidence of the circumstances in which she saw SB including a description of the window (with a venetian blind through which she could not see clearly). She does not of course say that she actually observed offending. Nor is it suggested that the friend of VR observed offending.
In my view, the deficiency in evidence relating to contextual circumstances is again capable of being addressed by a forensic disadvantage direction.
Uncharged acts
The Crown case as to further uncharged acts at about this time referred to above is unparticularised and devoid of contextual detail.
Once again, the inadequacies in this evidence could not of themselves require a stay because the evidence is plainly capable of exclusion. In particular the trial judge could exclude it either on the basis that the evidence does not meet the significant probative value test required for tendency evidence or on the basis that its prejudicial effect outweighs its probative value and on the further basis that its generality occasioned unfair forensic disadvantage.
Count 10
His Honour described the basis of count 10 as follows:
Count 10 also concerns S.B. and alleges offending between 15 January 1980 and 14 January 1981. The family moved to Carson Street, Shepparton, during this period. They lived there briefly, however, the accused and V.R. were having relationship problems. They separated and V.R. moved with the children to the home of her friends, D.W. and P.W. at 29 St Georges Road, Shepparton.
The accused and V.R. eventually reconciled and he moved in to the St Georges Road address. The complainant alleges that by this time, her breasts had started to develop. On one occasion, she was wearing what is described as a ‘boob tube top’ and was in the laundry of the house. The accused walked up behind her, pulled her top down and fondled her breasts.
The complainant gives evidence that she turned around and yelled at him to leave her alone. He told her that if she ever wanted to leave the house again, she would do as she was told.
Count 12, like count 10, related to offending at St Georges Road and it is convenient to put over consideration of the adequacy of the evidence relating to count 10 for consideration together with the evidence relating to count 12.
Count 11
Count 11 has the following basis:
Count 11, as I have indicated, relates to the complainant LM, and alleges offending between 31 March 1981 and 30 March 1982. On a Friday evening during this period, the accused allegedly had been drinking at the hotel and returned home. The complainant recalls that Charlie's Angels was on television during the evening. The complainant and her sister shared a bedroom at the front of the house. The complainant was in bed and SB was present. The complainant was wearing a nightie and knickers. The accused came into the bedroom and told the complainant to get out of bed and go into the lounge room. He told her to take off her knickers and he sat on the couch with his jeans undone and his erect penis exposed. He told her to put her hand on his penis and guided her hand up and down on his penis. He told her to kiss his penis, like you see people kissing on television. He then pushed her head down and put his penis into her mouth. The complainant gives evidence she dry-reached and choked on the accused's penis.
The accused allegedly told the complainant to turn around and put her hands on her knees. He then allegedly ejaculated all over her bottom and wiped off the ejaculate with tissues. He then told her, allegedly, to go off to bed. The complainant recalls that this conduct was ‘almost a rigid routine’ and occurred between 20 and 30 times, and this is led as evidence of uncharged acts. It is also led as evidence of tendency and coincidence.
Once again, the evidence of uncharged acts could not logically require a stay of the presentment. Further, it was open to the trial judge to exclude this evidence for the same reasons as I have expressed with respect to the other evidence of uncharged acts.
Insofar as the specific incident described by LM and forming the basis of count 11 is concerned, his Honour concluded as follows:
Charge 11 is alleged to have occurred on a Friday evening, after the accused arrived home from the hotel. Again, there is no employment records. Again, there is no evidence from the mother about these matters. There is no evidence of the various movements of the parents and others in the family who could be expected to be in the home; no evidence at all, or no attempt to obtain evidence about the comings and goings of the various parties. Indeed, on the evidence, what is alleged by the complainant relative to Charge 11, is at odds with the evidence at depositions 131 and 132 at paragraph 8, which has the accused attending at judo lessons with one of the complainant's on the Friday evening.
The matters identified by his Honour are capable of being addressed by way of a detailed forensic disadvantage direction and directions concerning the complainant’s credit. Whilst it may be accepted that the respondent has suffered general presumptive forensic prejudice, SB’s evidence of the sequence and location of events is circumstantial and detailed and the public interest requires that the allegations be the subject of trial.
Count 12
His Honour further described the basis of count 12 as follows:
Count 12 concerns SB and alleges offending between 1 December 1981 and 31 January 1982. The complainant started seeing a boy from her neighbourhood and had to sneak around because the accused would not have let her have a boyfriend. The accused would also not allow her to participate in social activities at night. The complainant gives evidence of recalling that he would blackmail her into performing sexual acts with him in order for him to allow her to go out at night with friends.
The complainant's evidence is that the last time the complainant recalls anything happening was on an occasion when she was standing up somewhere in the house at St Georges Road. She recalls feeling like she wanted to vomit. The accused made her touch his erect penis on the outside of his clothing. She yelled at him that it was enough and that she was going to tell her mother. The accused allegedly laughed at her and said, ‘You tell your mum and just see what happens’.
That day the complainant told VR about what had occurred. The complainant recalls that VR was initially angry and believed that the complainant was making up the allegations because the accused was so strict. VR asked LM if anything had occurred and she told her that it had not. LM told VR this because she was scared of the accused. VR spoke with the accused and asked him if he had ‘molested’ SB. He denied the allegation and told VR that SB was making it up because she cannot get her own way. VR took SB to see a doctor and the allegations were reported to police. This was shortly after the last count in January 1981/82.
VR recalls that no statements were taken by the police and no investigation was undertaken by the police. A couple of days after VR had initially confronted the accused, she spoke to him again when they were in the back yard of the house. He allegedly was sitting on the swings crying. VR gives evidence she told him that if he had touched Sharon inappropriately, then they could get him help and sort things out. The accused allegedly told her that he had touched SB on the boobs a couple of times. VR asked him why he would do that and she gives evidence he told her that SB reminded him of her, that is VR, when she was younger.
VR gives evidence that the accused told her that he would get help for what he had done. This evidence is led as an admission. VR later separated from the accused.
His Honour concluded:
Charge 12 is alleged to have occurred at St Georges Road. Again, there is no evidence about the layout: no confirmation that there was even a swing. This evidence is quite vital to the prosecution case, because it leads to an alleged admission being made by the accused man, an admission which, on any view, seems at odds with what he allegedly might have said to the police in the days shortly thereafter.
The evidence of blackmail relating to general sexualised acts which is included in the evidence proposed to be led in support of count 12 is capable of exclusion and could not of itself logically require a stay. Once again, it might be excluded for the same reasons as I have expressed with respect to the other evidence of uncharged acts. Insofar as the deficiencies in the evidence relating to surrounding circumstances which the trial judge identified in respect of the evidence relating to both counts 10 and 12 are concerned, I am not persuaded however that the matters identified could not be properly addressed by a detailed forensic disadvantage direction.
The complaint evidence
As I have indicated, the respondent contends that he has suffered particular prejudice with respect to the complaint evidence upon which the Crown relies. His Honour summarised the background to the issue as follows:
There is evidence missing in relation to each of the counts, which I shall return to a little later. But it is necessary I think to separate out the other main head of missing evidence. That is the fact that there is now missing evidence in the form of medical notes of a medical practitioner, Dr Goy, who saw the complainant SB and her mother, VR, in late 1981 or early 1982. Dr Goy gave evidence on voir dire and has made a statement in which it is clear that he has no recollection of the consultation and his medical notes have been destroyed.
His Honour then concluded that there was some force in the complaint that there was no longer available, because of delay and the loss of evidence, any measure of testing the evidence of complaint. He further concluded that this meant the prosecution would get the benefit of bolstering the credit of the complainant SB but the accused had no basis for attacking her credit.
Once again, it seems to me that the evidence of historical complaint to Dr Goy and the police in the first instance raised a question of admissibility. It was open to the trial judge to exclude that evidence subject to the defence raising some issue of alleged recent invention either with respect to the evidence of SB or the mother VR in respect of SB’s complaint to her. I note that on the voir dire the accused did not dispute that SB made some sort of complaint to her mother at this time or that the complaint was referred to the police but said that the complaints were of a general nature.
It follows from the fact that the evidence could be excluded that I do not accept that if the matter proceeds the prosecution would necessarily get the benefit of bolstering the credit of the complainant SB by this evidence as his Honour concluded.
In argument counsel for the respondent submitted that even if the evidence of complaint to police were excluded the respondent has lost the potential benefit of documents evidencing the substantive nature of the investigation. It is of course unknown precisely what police notes or other documents were in fact made at the time or what they would demonstrate. Further, it is unknown what reason Detective Collings had for proceeding no further with the matter.
More fundamentally, the evidence in question is not direct evidence bearing on the commission of the offences, eg the evidence of an eyewitness who is no longer available or something like a diary constituting a contemporaneous record. It would at best (or worst) from the defence point of view most relevantly comprise evidence of prior consistent or inconsistent statements by SB, VR and the respondent. Further, exclusion of evidence of complaint to the police, from the Crown case, would still leave the defence with the forensic choice of adducing evidence of the outcome of the police investigation either in cross-examination or otherwise, in the course of the trial, if that were thought desirable.
Once the conclusion is reached that it is possible to prevent the unfair bolstering of credit which the trial judge perceived as critical, I am not persuaded that the potential forensic disadvantage postulated on behalf of the respondent by way of loss of potential evidence is sufficient to warrant a stay. R v Edwards makes clear that possible forensic disadvantage is not enough and when the missing evidence is looked at in the context of the evidence as a whole, I am not persuaded its absence would result in an unfair trial.[23]
[23]R v Audsley [2013] VSCA 41.
Severance
It is apparent that ultimately his Honour was concerned about the cumulative forensic prejudice arising from the combined evidence of SB and LM. In my view it was also open to the trial judge to refuse to allow this evidence to be treated as cross-admissible and to sever the presentment. The defence foreshadowed an application for severance at trial. The principal factors supporting the conclusion that it would be open to sever are:
·Despite some circumstantial similarities in the offending involving the two sisters, the offending involving SB involved direct penile contact with the victim. It was not directly similar to the offending involving LM.[24]
·The complaint history with respect to SB was substantially different to that of LM and in particular no broadly contemporaneous complaint was made at all.
·The deficiencies identified by his Honour in the circumstantial evidence mean that he was correct to conclude that there was a risk of cumulative prejudice to the respondent. Insofar as I have expressed the view that only one of the charges should be stayed, I have reached this conclusion on the basis that the jury could be satisfactorily directed with respect to the specific deficiencies in contextual circumstantial evidence relating to each charge. Self-evidently that process would be materially assisted by a disaggregation of the presentment.
[24]Cf GL v DPP [2010] VSCA 26.
Conclusion
For the above reasons, I would grant leave to appeal and set aside the orders of the trial judge but stay count 1 upon the presentment pursuant to s 300(2) of the Criminal Procedure Act 2009. In summary, I am not persuaded that the forensic disadvantage affecting the other counts results in such an extreme case as to justify a stay in terms of the principles elaborated in Jago. In particular, I do not accept that it gives rise to fundamental defects of unfairness which cannot be adequately addressed by other procedural measures.
More particularly, for the reasons I have stated, I am satisfied that his Honour erred in his conclusions as to the degree of forensic disadvantage both individually
and cumulatively arising from deficiencies in the evidence. He further failed to adequately address the procedural alternatives to a stay available to minimise prejudice to the respondent. In turn looked at in the broad, save for count 1, I am satisfied his Honour’s discretion miscarried.
Lastly, I should make plain that the above conclusions do not mean that the complexion of the evidentiary material may not change in the course of trial. As Ashley JA (with whom Redlich and Weinberg JJA agreed) said in Wells v The Queen:[25]
it might appear, as the trial proceeds, that the circumstances are otherwise than I presently apprehend them. If that turned out to be the case, the applicant would not be precluded from making a further application for a stay.[26]
[25][2010] VSCA 100.
[26]Ibid [26].
REDLICH JA:
The applicant submitted that the oppressive delay has given rise to inevitable largely unidentifiable unfairness. I agree with Osborn JA that save as to Charge 1, it has not been shown that, beyond the presumptive prejudice flowing from the great lapse of time since these offences are alleged to have been committed, there are exceptional circumstances that would justify the extreme and rare step of permanently staying the prosecution. That is not to say that as the trial progresses, the trial judge may conclude that matters have emerged that demonstrate a specific prejudice that is incurable by any form of order or direction to the jury of forensic disadvantage and which would justify a stay of particular charges.
Moreover, nothing that has been said in allowing the appeal in any way restricts the issues which the applicant may choose to explore at trial.
SIFRIS AJA:
I agree with both Redlich and Osborn JJA.
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