R v FJL

Case [2014] VSCA 57 28 March 2014

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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 16^th 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v FJL

Details

AGLC: R v FJL [2014] VSCA 57
Case: [2014] VSCA 57
Decision Date: 28 March 2014

CaseChat Overview and Summary

In this case, the Director of Public Prosecutions applied for leave to appeal against a permanent stay of 12 counts of indecent assault on children under 16 years of age. The accused, FJL, was facing trial for these offences, with the most recent alleged incident occurring 32 years prior to the trial. The primary issue before the court was whether the significant delay in bringing the case to trial resulted in a ‘simple’ delay that only gave rise to a presumptive prejudice, or whether it constituted a gross delay that caused specific forensic disadvantages, which could potentially be addressed through procedural steps short of a permanent stay.

The court examined the nature of the delay and its impact on the accused's ability to mount an effective defence. It considered whether the delay had resulted in a mere presumptive prejudice, which would typically warrant a permanent stay, or if there were specific forensic disadvantages that could be mitigated through procedural measures. The court concluded that while some of the prejudice could be addressed through procedural steps, the gross delay had indeed caused specific forensic disadvantages that were not fully remediable, and therefore, the case warranted a permanent stay.

The court granted leave to appeal, finding that the gross delay did indeed give rise to specific forensic disadvantages that could not be adequately addressed through procedural steps. Consequently, the appeal was allowed in part, with the permanent stay of the 12 counts of indecent assault upheld. The court's decision highlighted the importance of considering both the general and specific impacts of delay on the accused's right to a fair trial when determining whether a permanent stay is warranted.

Orders