Snyder (a pseudonym) v The Queen

[2021] VSCA 96

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0251

CLIFTON SNYDER (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To avoid the possibility of prejudice in the applicant’s trial, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGE:	PRIEST, KYROU and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 April 2021
DATE OF JUDGMENT:	16 April 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 96
JUDGMENT APPEALED FROM:	DPP v [Snyder] (Unreported, County Court of Victoria, Judge Doyle, 26 November 2020)

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CRIMINAL LAW — Interlocutory Appeal — Hearsay — Trial of sexual offences — Complainant deceased — Whether complainant’s statements to police and evidence in committal proceedings admissible — Evidence of full extent of complainant’s psychiatric condition disclosed after committal — Whether probative value of evidence outweighed by danger of unfair prejudice — Whether common law unfairness discretion applicable — Evidence Act 2008, ss 65 and 137 — Haddara v The Queen (2014) 43 VR 53 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Ms R Shann and Ms T Skvortsova	SLKQ Lawyers
For the Respondent:	Ms E Ruddle QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA
KAYE JA:

Introduction

1. An indictment filed in the County Court charges the applicant with six charges[2] of committing an indecent act with a child under 16[3] and thirty charges[4] of taking part in an act of sexual penetration with a child under 16,[5] in the period between late 1993 and late 1994.  On arraignment, the applicant pleaded not guilty.

   [2]Charges 2, 7, 26, 29, 33 and 34.

   [3]Crimes Act 1958, s 47(1).

   [4]Charges 1, 3, 4 to 25, 27 to 28, 30 to 32, 35 and 36.

   [5]Crimes Act 1958, s 45.

1. Significantly, the complainant, ‘EW’, suicided in 2019.  She was born in 1978, and was aged 14 to 15 years at the time of the alleged offending.  The applicant, born in 1971, was aged between 21 and 24 years when he allegedly committed the offences against her.

1. Prior to her death, EW made two statements to police, on 24 May and 19 June 2018 respectively.[6]  The first statement, which is lengthy and detailed, contains more than a hundred paragraphs, and describes EW’s relationship with the applicant and the alleged offending.  Of much shorter length, the second statement corrects an error in the first, and explains the relevance of a series of photographs to EW’s relationship with the applicant.

   [6]The statements each contained an acknowledgment signed by EW in the presence of a police officer that the statement is true and correct and is made in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury.  See Criminal Procedure Act 2009, s 112(1).

1. EW also gave evidence at committal on 18 December 2018, during which she affirmed the truth of her two statements.  She was also cross-examined at length — albeit not very effectively — the cross-examination occupying 103 pages of transcript.

1. The prosecution filed a Hearsay Notice, dated 4 December 2019, seeking to adduce evidence in the applicant’s trial of a number of representations made by EW. Importantly, representations 11 and 12 in the notice relate to EW’s two police statements and her evidence at committal. The prosecution submitted that the representations were admissible under s 65(3) of the Evidence Act 2008 (‘the Act’).  Their admissibility was challenged by the applicant, who also sought a permanent stay of the proceedings.

1. By a ruling delivered on 26 November 2020, the trial judge: first, admitted the challenged evidence under s 65(3); secondly, refused to exclude it under s 137 of the Act or pursuant to the Haddara[7] discretion; and, thirdly, refused a permanent stay of proceedings (‘the ruling’ or ‘the interlocutory decision’).

   [7]Haddara v The Queen (2014) 43 VR 53 (‘Haddara’). 

1. Pursuant to the trial judge’s certification given under s 295(3) of the Criminal Procedure Act 2009, the applicant seeks leave to appeal against the interlocutory decision on three grounds.  As renumbered, they are:[8]

1. In the event that the disputed evidence was properly admitted, the learned trial judge erred in refusing to exclude the evidence under s 137 of the Evidence Act;

2.   In the event that the disputed evidence was properly admitted, the learned trial judge erred in refusing to exclude the evidence under the residual Haddara discretion; and

3.   In the circumstances of this case the learned trial erred in refusing to grant a permanent stay of the proceedings.

[8]A fourth ground — the first numbered ground in the applicant’s Notice of Application for Leave to Appeal — was abandoned.  It was formulated as follows:

In the circumstances of this case the learned trial erred in admitting the disputed evidence under s 65(3) of the Evidence Act.

1. For the reasons that follow, we would refuse leave to appeal.

The complainant’s account

1. Turning first to EW’s account, in her first statement she described living in a north-eastern Melbourne suburb with her mother, step-father and two siblings.  The applicant, then aged 21, moved into the house opposite when EW was 14 years of age.  Shortly after he moved in, he became friendly with EW’s mother and would frequently visit her at home.

1. EW injured herself on 12 November 1993, and had the next day off school.  She was alone in the house when the applicant visited.  They watched a movie.  The applicant then kissed EW passionately and touched her breasts and vagina.  They then went to the applicant’s house and watched another movie.  At one point during the movie, the applicant took EW into his bedroom, stimulated her clitoris with his fingers, and rubbed his penis on her stomach until he ejaculated.

1. Thereafter the applicant wrote love letters to EW daily, and he asked EW’s mother’s permission to ‘date’ her.  Her mother agreed, but her step-father stipulated that there was to be ‘no sex’, only ‘petting’.

1. In her first statement, EW described further incidents of sexual activity which occurred around her fifteenth birthday in December 1993.  After attending a wedding together, the applicant penetrated EW’s vagina with his fingers and performed cunnilingus, and penetrated her mouth with his penis to the point of ejaculation.

1. It is unnecessary to set out in any detail any of the other discrete incidents of sexual activity that EW described.  The various activities included EW masturbating the applicant’s penis and performing fellatio on him, and the applicant performing oral sex on EW and digitally penetrating her vagina (including a forceful incident of penetration — referred to in some of the material as ‘fisting’ — which caused EW to bleed from the vagina).  EW also described a number of occasions upon which the applicant penetrated her anus with his penis (although, she said, the applicant ‘never tried’ to have penile-vaginal intercourse with her).

1. Due to a deterioration in the applicant’s relationship with EW’s mother and step-father, EW moved out of her family home in September 1994, and took up residence with the applicant’s parents (where she remained until July 2000).  The applicant broke off the relationship with EW ‘out of the blue’ on Christmas Eve, 1995.

1. EW got married when aged 27, and had children in 2009 and 2010.  In 2011 she heard via media and social media that the applicant had been charged with child sex offences.  She was ‘mortified’ and ‘humiliated’, and contacted the Office of Public Prosecutions who put her in touch with Detective Matthew Phelan.  After conversing with him, EW decided that ‘the time was not right’ to report what had happened to her, because she was pregnant and had a young family.  

1. On EW’s account, a chance meeting at the Blood Bank in February 2014 with the mother of one of the applicant’s male child victims ‘triggered’ something inside her.  Indeed, according to EW’s husband, she had a ‘massive breakdown’ after that chance meeting.  EW said she ‘became suicidal for the first time and after a few days at home [she] was admitted into a psychiatric hospital for containment’.  It seems that during that hospitalisation, at Delmont Hospital, EW wrote a ruminative letter to the applicant, dated 24 April 2014, although it was never sent (‘the Delmont letter’).      

1. Later, in April 2018, EW voluntarily admitted herself to the mental health unit of Epworth Hospital.  Whilst there, she made some notes about her abuse at the hands of the applicant (‘the Epworth notes’), and ‘decided it was time to something about it’, referring to the applicant’s sexual offending.  She telephoned a district Sexual Offences Unit on 26 April 2018, and spoke to Detective Senior Constable Amber Coutts.  Prior to that, EW had only disclosed to one other person, an athletics friend, what had occurred with the applicant, because she ‘felt too ashamed to tell anyone’.  EW’s first statement to police on 24 May 2018 was made using the Epworth notes. 

The complainant’s cross-examination at committal

1. It is convenient next to turn to EW’s cross-examination at committal proceedings conducted by the legal practitioner then appearing for the applicant.

1. At the outset it should be observed that, although the kind of cross-examination conducted at committal ordinarily is different to that conducted at a trial — there is no obligation on an accused person at committal to disclose his or her defence or to comply with the rule in Browne v Dunn[9] (or, indeed, to cross-examine prosecution witnesses at all)[10] — and generally is no substitute for the type of cross-examination conducted at a trial, judged by any yardstick EW’s cross-examination was not a paragon of the criminal advocate’s art.  

   [9]Browne v Dunn (1893) 6 R 67.

   [10]R v Birks (1990) 19 NSWLR 677, 689 (Gleeson CJ). See also Petty v The Queen (1991) 173 CLR 95, 102 (Mason CJ, Deane, Toohey and McHugh JJ).

1. In this Court, counsel for the applicant criticised the cross-examination on the basis that in large part it consisted of a non-leading invitation to EW to provide a narrative account, in the course of which no aspect of the applicant’s version as contained in his record of interview with police was put to her, and the suggested improbabilities in (and of) her account were not explored.  We consider these criticisms to be justified.  They cannot, however, be determinative of the issue of the admissibility of EW’s statements and committal evidence.  In our view, it is quite plain that, although the practitioner who represented the applicant at committal may not have cross-examined the complainant on critical aspects of her account — whether by reason of conscious decision or through oversight — he had a ‘reasonable opportunity’ to do so.[11]

   [11]See s 65 of the Act at [38] below.

1. To understand the criticisms made of the cross-examination, it is convenient to provide a brief summary of its main features.

1. The cross-examiner commenced his somewhat meandering questioning by having EW confirm her date of birth, and then by having her turn her statements face downward.  Over the course of a number of questions he then read paragraph 93 of her first statement to her, and asked EW about ‘Facebook’ posts.  Several pages were then devoted to EW’s access to a previous appeal decision concerning the applicant published on and the similarity of the applicant’s conduct as described in that decision to the sexual offences perpetrated upon her.  The cross-examiner then questioned EW (over a number of pages of transcript) on her account of the meeting at the Blood Bank, and her husband’s account in his statement of what EW had said about the meeting.  Next, the cross-examiner questioned EW about her ‘massive breakdown’, and about psychological and psychiatric treatment that she had (including eliciting the name and address of treating psychologists, psychiatrists, and the facilities where — and the nature of — the treatment EW received, and her diagnoses).

1. Eight pages or so of transcript are then devoted to the cross-examiner asking EW about details recorded in the Epworth notes.  During that phase, the cross-examiner appeared to go off on a tangent, teasing out details of alleged sexual activity that EW had not described in her two statements (somewhat unhelpfully to the defence case, it might be thought).  Next, EW was cross-examined about the applicant’s ‘insatiable’ sexual appetite — including having her confirm that she and the applicant ‘participated in sexual acts greater than 1,000 times’ — before being asked about the applicant’s anal penetration of her.

1. The cross-examiner then returned to questioning EW on the Epworth notes — including her account of a car accident and various other irrelevancies — in the course of which he had EW describe a host of sexual activity with the applicant that had not been contained in her statements to police.  Several pages of transcript are then devoted to questions about memory, how the mind works and how memories are revived (for example, by smell), before the cross-examiner returns to EW’s Epworth notes.  Once more, much of what was drawn out was irrelevant (including, for example, EW’s statement that she became sexually ‘hyper aroused even by the vibration of a bus’).

1. Next, the cross-examiner returned to EW’s first statement and her description of the first incident of sexual activity involving the applicant.  As part of that exercise, EW was permitted to provide a narrative of that incident — frequently peppered with, and encouraged by, short questions such as ‘Yes?’ — which occupies some five pages of transcript.  The cross-examiner then adduced from EW details of other sexual activity — not described in her statements — that occurred between the first and second incidents of sexual activity referred to in her first statement.  This activity, which the cross-examiner had EW describe in what, in another setting, might be considered prurient detail, was said to have occurred in the applicant’s garage after school.  It is difficult to discern how any of this cross-examination could have been thought to advance the defence case.

1. The cross-examiner then returned to EW’s account in her first statement of sexual activity that occurred on her fifteenth birthday — again permitting EW to provide a detailed narrative (which occupies several pages of transcript) — and had EW describe in finer detail some aspects of the sexual activity involved.  Almost five pages of transcript are then largely occupied with questions concerning the applicant’s anal penetration of EW, including frequency and places of occurrence, and how it felt.  The cross-examiner then returned to EW’s first statement, the final portion of cross-examination being devoted to EW’s account of sexual activity when the applicant was ‘house-sitting’ and on other identified occasions.  Once more the cross-examiner had EW provide a narrative of the activity in minute and excruciating detail (including having EW describe an occasion when the applicant injured her in the course of penetrating her vagina with his fist), none of which appears to have been calculated to detract from any part of the prosecution case, or to support any aspects of the applicant’s defence.

1. This brief survey of EW’s cross-examination illustrates that, although the cross-examination might not have been particularly competent, the applicant through his legal practitioner had a reasonable opportunity to cross-examine EW on the various representations contained in her statements (at the same time eliciting further representations against the applicant’s interest that had not been contained in the statements).

Expert opinions post-committal

1. When the committal proceedings were conducted, the defence did not have available to it any clinical notes or other medical records containing the complainant’s psychiatric history.  Indeed, the relevant records — substantially redacted — were only released by a judge in 2020 following an application by the defence[12] (and over the prosecution’s objection).  The applicant’s legal advisers had sought details of the complainant’s treating psychiatrists before the committal, but EW had not been prepared to reveal that information.  Thus, no clinical notes or psychiatric records were obtained pre-committal, and the issue of their production was left to be dealt with by the County Court.

   [12]See Evidence (Miscellaneous Provisions) Act 1958, s 32C.

1. Subsequently, a report was obtained from Professor Donald Thomson — Emeritus Professor of Psychology and acknowledged expert in memory — dated 13 July 2020; and two reports were obtained from Dr Danny Sullivan — a well-credentialed consultant forensic psychiatrist — dated 7 August and 2 September 2020 respectively.  Both gave evidence before the trial judge on voir dire — Professor Thomson on 17 August 2020, and Dr Sullivan on 1 October 2020 — by which time both had assessed EW’s recently released psychiatric records, and Dr Sullivan additionally had listened to the recording of EW’s evidence at committal.  Among other things, Professor Thomson’s opinion had been sought as to whether the contents of EW’s statements and committal evidence bore ‘the hallmarks of false memories’; and Dr Sullivan’s opinion had been sought as to whether EW’s diagnoses, symptoms, medications, treatment or other things may have impaired the accuracy of her ‘purported recollections’.

1. In the course of her evidence at committal, EW had acknowledged that, prior to making her first statement, she had accessed two categories of information: first, the appellate decision relating to the applicant’s earlier offending against children; and, secondly, documents concerning unrelated cases bearing comparable factual features.  On the voir dire, when asked about the relevance of EW having accessed this information, Dr Thomson offered the opinion that ‘given the length of time that occurred since [the] alleged offences against her in 1994 that potentially … has a high probability of being incorporated into [EW’s] subsequent memory’.  And with respect to EW’s Epworth notes, Dr Thomson said that they

are likely to reflect a whole range of experiences that she’s had since the alleged offence.  The range of experience being what she has read, what she has been told and what other sorts of things that she may have experienced.

1. For present purposes, it is unnecessary to set out at length much more of Professor Thomson’s detailed evidence, since the general tenor of his evidence may be appreciated from the following:[13]

[DEFENCE COUNSEL]:  So, Professor, what is your ultimate view about whether the four representations made by [EW], that being the letter she wrote at Delmont Hospital, the notes she made at Epworth, statements she made on the basis of those notes and the evidence she gave at committal, what is your ultimate view about whether those four representations bear the hallmarks of false memories?---I think I’ve commented on that before in the sense that those notes will have – are likely to reflect a whole range of experiences that she’s had since the alleged offence.  The range of experience being what she has read, what she has been told and what other sorts of things that she may have experienced.

…
So what you’re really saying is all these things create the potential of inaccuracy having regard to the things that you’ve referred to really, is that the long and short of it?---That’s the long and the short of it.  I can say that based on the material provided I would come to the conclusion more probable than not that many of these events have contaminated the complainant’s memory.

[13]Emphasis added.

1. We also consider that the main thrust of Dr Sullivan’s opinions may be gleaned from the following passages of his first report, dated 2 September 2020, the contents of which he explained and expanded upon in his evidence on the voir dire:[14]

   [14]Emphasis added.

[63]  In April 2014, [EW] had, according to her husband, a complete breakdown.  Her depression was sufficiently severe to warrant electroconvulsive therapy.  Severe depression can result in impaired cognition, with slowed thinking, impaired recall and depressive or negative interpretations of past events.  In addition, cessation of medication may result in increased anxiety and distress.  Finally, once electroconvulsive therapy commenced at the end of April 2014, it is likely to have impaired recent memory, although not distant autobiographical memory.

…

[64]  [EW] was noted to have a diagnosis of borderline personality disorder in crisis and was engaging in deliberate self-harm.  She was described as overwhelmed and was experiencing significant sleep disturbance with vivid nightmares and dreams.  It is possible that she had difficulty with cognition due to the effects of sleep disturbance and distress.  Vivid dreams and nightmares may raise the possibility that content from these was incorporated into past memories.  An increase in SNRI [serotonin and norepinephrine reuptake inhibitors] medication (duloxetine) may have also transiently increased agitation.

…

[65]  As noted above at [64], [EW’s] mental state may have reduced her cognitive abilities through distress, anxiety, and fatigue due to poor sleep.  The predominant relevance to accuracy of her recall is if the detail she reported as her memory in May and June 2018 was in fact related to dreams or nightmares from April 2018.  Dreams and nightmares are not reliable as memory of actual events.

…

[68]  At the time of the admission in April 2018, [EW] was described as overwhelmed by and preoccupied by sexual abuse including her reported experiences.  The salience of her symptoms of nightmares and flashbacks might impact on her detail of her recall.  In addition, accessing information about the sexual offending of the accused (and of unrelated sexual offending) while in a heightened state of distress and preoccupation about sexual abuse may have functioned to prompt her memories.  It is not possible to determine whether her mental state impacted on the accuracy of her memories detailed in ‘the Epworth notes’.

…

[70]  [EW] described feeling confident about the quality of her memory and recall of events, despite significant symptoms of mental distress, and sleep disturbance and changes in medications.  I am not able to state with any certainty that the accuracy of her actual recall was impaired or not.  There is insufficient information to differentiate between the effect of her mental state at different times, on the accuracy of her recall.

The ‘Phelan notes’

1. As we have mentioned,[15] EW contacted Detective Matthew Phelan in 2011. 

   [15]See [15] above.

1. No notes of any conversation between EW and Detective Phelan in 2011 were produced by the informant or prosecution, however, prior to the applicant’s committal proceedings.[16]  Further, when she was cross-examined at committal, the informant, Detective Coutts, gave sworn evidence that there was ‘no written record of any interaction’ between EW and Detective Phelan.

   [16]See Criminal Procedure Act 2009, s 41(1)(e)(iii) and s 42.

1. More than two years after the committal proceedings had concluded, however, the prosecution filed a Notice of Additional Evidence dated 7 April 2021.  Attached to the Notice was a statement by Detective Phelan, dated 23 March 2021, in which he said that, on 13 March 2020, he had been asked by detective Coutts to see whether he had ‘any diary entries concerning [EW] around the year 2011’.  He said that he then ‘found entries’ he made on 22 June 2011.  It appeared that he had met EW that day at 11.00 am, and made ‘notes of this meeting both in [his] diary and day-book’.  Those notes were produced (‘the Phelan notes’).  

1. In summary, the notes record that EW had told Detective Phelan that she left home at age 15 or 16, and went to live with the applicant.  She resided with the applicant ‘and/or his parents until 2001’, and continued to live with his parents after their ‘break-up’.  According to the notes, EW said she lived with the applicant for two years.  Significantly, she said her first ‘sexual encounter with him was one month before her 16^th birthday’.[17]  No ‘penis-vagina intercourse occurred’ on the ‘first time’.  The notes record that EW ‘described an incident [between] the two of penetration of him (sic) fisting her vagina causing her to bleed’.  There were also other ‘sex related’ incidents.  Detective Phelan’s notes also record that he explained the various options to EW, including that she could, if she wished, ‘pursue no complaint’.

   [17]We note that EW turned 16 years of age in December 1994.

1. The suggested relevance of Detective Phelan’s notes will become apparent when we come to deal with the submissions of the applicant’s counsel in this Court.[18]

   [18]See [45] below.

Section 65 of the Act

1. Before turning to the judge’s ruling, it is convenient to set out the relevant provisions of s 65 of the Act, which — subject to any applicable exclusionary rules — governed the admissibility of EW’s two statements to police and her committal evidence. So far as relevant, s 65 provides:[19]

   [19]Emphasis added.

65  Exception—criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

…

(3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the accused in the proceeding to which this section is being applied —

(a)   cross-examined the person who made the representation about it;  or

(b)   had a reasonable opportunity to cross-examine the person who made the representation about it.

…

(6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by —

(a)   the person to whom, or the court or other body to which, the representation was made;  or

(b)   if applicable, the registrar or other proper officer of the court or other body to which the representation was made;  or

(c)   the person or body responsible for producing the transcript or recording.

…

The ruling

1. Refusing to exclude the evidence of EW’s statements and committal evidence, in his ruling the judge said that ‘the probative value of the representations in the statements and the committal evidence is high’.  If accepted, the evidence ‘establishes the commission of the offences on the indictment’, the representations being ‘the backbone of the prosecution case’.  The judge said that he did ‘not believe that given appropriate directions there is any risk the jury will give the evidence more weight than it deserves’.

1. The judge accepted that there is ‘a level of prejudice to the defence occasioned by the inability to cross examine the complainant’ — the jury will not see the complainant and will not have the evidence-in-chief presented by non-leading questions — but the Act ‘contemplates such disadvantages’, and ‘these matters and the absence of cross-examination alone are not determinative in favour of exclusion pursuant to section 137’. He then expressed the view — one with which we respectfully disagree — that ‘the cross-examination at the committal was detailed and competently executed, albeit without the psychiatric notes’. Notwithstanding the prejudice, the judge observed, the defence will have the benefit of Professor Thomson’s and Dr Sullivan’s evidence, providing an evidentiary basis for defence counsel to make arguments to the jury as to how ‘matters in the notes should affect the jury’s assessment of the complainant’s evidence’. The judge observed that the jury ‘will be made aware of the matters the defence regard as important from the notes and the defence will have the benefit of expert opinion about the potential of those issues to impair the complainant’s reliability’. So much ‘significantly ameliorates the prejudice involved in not being able to cross-examine the complainant’.

1. As to any loss of opportunity to cross-examine further about extraneous material, the judge thought that to be ‘of limited significance’ since ‘this evidence was elicited at committal and cross-examination took place on this issue’, and the jury ‘will be able to listen to that evidence’.  Further, the judge was of the view that the argument that the redactions to the psychiatric records have hampered the ability of the experts to provide comprehensive evidence regarding the complainant’s mental health was not a factor giving rise to a danger of unfair prejudice, since an avenue open to the defence is to make a further application ‘for some or all of the redacted material’.

1. In summarising his conclusions on the defence application to exclude EW’s statements and committal evidence under s 137 of the Act, the judge said:

Accepting there is prejudice to the defence in this case, what is required is a fair trial not a perfect trial. In undertaking the balancing exercise required by section 137, I have had regard to the availability of directions to address prejudice flowing to the accused; and the capacity of the accused to introduce the relevant issues from the psychiatric notes via expert evidence. Taking these matters into account, in my opinion, the danger of unfair prejudice occasioned by the absence of the witness and the inability of the defence to cross examine the complainant does not outweigh what I regard as the significant probative value of the evidence.

1. Noting that the defence relied upon the same matters to invoke the Haddara discretion (so-called) as had been relied upon to found exclusion of the evidence under s 137, the judge said:

For the same reasons that I would not uphold the accused’s application under section 137, I would not exclude the evidence in the exercise of the Haddara discretion.  I am not of the view that the admission of the impugned evidence would result in an unfair trial.  Having decided that the probative weight of the evidence is not outweighed by the danger of unfair prejudice, it would be unusual to then exclude the evidence on the basis the reception of the evidence renders the trial unfair.

In my view any unfairness to the defence is ameliorated by the ability to lead the evidence through the defence experts and by the various judicial directions which will need to be given concerning the disadvantages arising from the absence of the witness.

1. Finally, turning to the application for a permanent stay, the judge noted (among other things) that a court may only grant a permanent stay where there is a fundamental defect that goes to the root of the trial of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences.  Refusing to permanently stay the proceedings, the judge said:

The arguments made in support of this ground really replicate those made in relation to the exclusion of the complainant’s evidence via section 65(3), but additionally the delay between the offending and the complainant going to police in 2018 is emphasised. No particular issues arising from that delay are raised additional to those already raised in respect of the section 137 argument.

For the same reasons I rejected the section 137 application and the challenge based on the Haddara discretion, I also decline to grant a permanent stay in this matter.  This application is based on substantially the same matters as the earlier arguments.  In my opinion, with appropriate directions, of the type referred to earlier in this ruling, and a forensic disadvantage direction to address the delay, the accused can receive a fair trial.  There is no fundamental unfairness that goes to the root of the trial.

The applicant’s submissions

1. Counsel leading for the applicant in this Court commenced her submissions by addressing the relevance of the Phelan notes.  She drew attention to the fact that EW had told Detective Phelan that her first sexual encounter with the applicant was a month before her sixteenth birthday, which meant that there could have been no unlawful sexual activity prior to November 1994.  Only charges 34 (involving EW allegedly masturbating the applicant), 35 (digital-vaginal penetration) and 36 (penile-anal penetration) were said to have occurred in November 1994.  Thus, so the argument went — one which, given that the notes were not produced until April 2021, was not put to the trial judge — since charges 1 to 33 on the indictment were alleged to have occurred prior to November 1994,[20] those charges were ‘foredoomed to fail’ and should be permanently stayed.  Thereafter, counsel put overlapping arguments, directed principally to the first and third proposed grounds of appeal.

   [20]The first offence allegedly occurred on 13 November 1993.

1. The applicant’s counsel expressly abandoned any suggestion that EW’s evidence was not admissible under s 65 of the Act,[21] instead contending that — should a permanent stay not be granted — the evidence should have been excluded under s 137 of the Act or pursuant to the Haddara discretion.

   [21]See footnote 8 above.

1. Counsel submitted that the judge was wrong to conclude that the evidence of Professor Thomson and Dr Sullivan did not affect the probative value of the impugned evidence.  Thus, in finding that EW’s account was a ‘cogent, logical and intelligible narrative’ the judge ignored the risk of contamination.  Furthermore, contrary to the judge’s expressed view, no support for EW’s evidence existed on any disputed matter.  The fact that the complainant incorporated details of social and other events into her first statement does not indicate whether or not her purported memory in 2018 of sexual offending was reliable.  Indeed, the Phelan notes establish that EW’s memory was unreliable, probably as a result of contamination.

1. The applicant’s counsel did not accept that the probative value of the representations in EW’s statements and committal evidence was high.  Referring to the well-known ‘foggy night’ analogy,[22] counsel instead submitted that — due to the background circumstances which raise questions concerning the nature, quality and reliability of the complainant’s memory — the probative value of the evidence was very limited.

   [22]IMM v The Queen (2016) 257 CLR 300, 314–5 [50] (French CJ, Kiefel, Bell and Keane JJ) (‘IMM’).

1. Counsel also submitted that the judge was wrong to conclude that the jury would not give the evidence more weight than it deserved.  As the prosecution acknowledged, there was significant forensic disadvantage arising from delay.  Additionally, EW’s account at the committal was confident, in circumstances where the dangers attaching to witnesses providing accounts which are honestly and confidently given are well known to the law.  And since this case alleges sexual offending against a child, there is already a danger of the jury’s decision-making being compromised by emotional responses.  Moreover, in this case it will be impossible to mount any real defence without the jury being aware of the applicant’s unrelated prior offending (which will undoubtedly provoke the jury’s revulsion). 

1. Amplifying the prejudicial effect of the evidence, counsel submitted, the jury likely will know that EW died after years of significant psychiatric issues, some of which related to her beliefs about the applicant.  There is thus a palpable danger that the complainant’s psychiatric history will be viewed as corroborating her claims.  

1. The applicant’s counsel took issue with the judge’s finding that EW’s cross-examination at committal was detailed and competently executed.  By and large, it consisted of a non-leading invitation for the complainant to provide a narrative account.  No aspect of the applicant’s record of interview was put, and the ‘improbability’ of EW’s account was not tested.  In any event (and significantly), relevant disclosure — highly relevant to the credibility and reliability of EW’s account — only arose after the committal.  It is chimerical to suggest, as the judge did, that there may be some potential forensic benefit to the applicant in being deprived of the opportunity of testing the complainant’s evidence.

1. In combination, counsel submitted, the factors adverted to create a danger of unfair prejudice that is not readily amenable to amelioration by judicial direction. 

1. Finally, counsel submitted that — quite apart from the fact that, based on the contents of the Phelan notes, charges 1 to 32 are foredoomed to fail — the proceedings against the applicant should be permanently stayed since a number of circumstances in combination dictated the conclusion that he could not be tried without unacceptable unfairness.  Whilst accepting that a permanent stay of proceedings is an exceptional remedy, counsel submitted that ‘cumulative circumstances of unfairness’ relied upon in order to exclude the evidence also support the proposition that continuation of the trial would be unacceptably unfair such that it would constitute an abuse of process.  Hence, it was not open to the judge to reject the application for a permanent stay.

The respondent’s submissions

1. The respondent submitted that, ‘taken at its highest’, the impugned evidence ‘is highly probative’, being ‘direct evidence by the complainant of offending against her by the applicant’.  In that regard, it was open to the judge to find that EW’s evidence was supported by surrounding circumstances.

1. While on the one hand acknowledging that ‘there is prejudice to an accused by virtue of the inability to cross-examine the complainant’, the respondent on the other hand contended that there is a forensic advantage to having Professor Thomson’s and Dr Sullivan’s reports before the jury ‘without the need (or ability) to cross-examine the complainant about them’. The respondent submitted that s 137 is concerned with ‘unfair prejudice’, but not every disadvantage in the case amounts to unfair prejudice. It is a matter of forensic judgement for the applicant, so the respondent submitted, ‘how much of that material goes before a jury’; and, in any event, the jury will be directed ‘not to act on the basis of prejudice’. Further, so the respondent submitted, the judge was correct to find that the cross-examination of EW was ‘was detailed and competently executed’.

1. Given these matters, the respondent submitted, the judge was correct not to exclude the evidence under s 137 of the Act or pursuant to the Haddara discretion.

1. Finally the respondent submitted that since (apart from delay) the applicant ‘did not rely on anything over and above the matters raised in support of his application for exclusion of the evidence’, there was no basis for the trial judge to find grounds for a permanent stay.

Discussion

1. The first proposed ground contends that the trial judge erred in refusing to exclude the evidence of the representations contained in EW’s statements and committal evidence under s 137 of the Act.

1. Section 137 provides:

137  Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

1. The Dictionary to the Act defines ‘probative value’ to be ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue‘. Assessing the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue requires that the possible use to which the evidence might be put be taken at its highest.[23] Although other sections of the Act assign a quality to the probative value contemplated by the particular provision, s 137 does not spell out the requisite probative value,[24] simply requiring the probative value of the evidence to be weighed against the danger of unfair prejudice to the accused. In providing that probative value is to be weighed against the danger of unfair prejudice, however, s 137 does require that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue.[25]  

   [23]IMM, 313 [44] (French CJ, Kiefel, Bell and Keane JJ).

   [24]Compare ss 97 and 98 of the Act, which deal respectively with tendency evidence and coincidence evidence. Those sections require the relevant evidence to have ‘significant’ probative value.

   [25]IMM, 314 [47], 314–5 [50] (French CJ, Kiefel, Bell and Keane JJ).

1. Quite clearly, in our view, the evidence of EW’s representations contained in her statements and committal evidence is highly probative.  Her evidence was detailed and specific.  If accepted by a jury as truthful, credible and reliable, it would establish the applicant’s guilt on each charge in the indictment. 

1. We do not accept the contention advanced by the applicant’s counsel to the effect that, because of background circumstances that impinge on the accuracy of her memory, the evidence of EW’s representations is of limited probative value.  That contention is, we consider, at odds with IMM, in which, as we have said, it was made clear that the assessment of the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue requires that the possible use to which the evidence might be put be taken at its highest.[26]  The caveat to that proposition — that the circumstances surrounding the evidence may indicate that if the probative value of the evidence, at its highest level, is not very high — is applicable to the particular circumstances of the witness and to his or her perception of the matter to which the evidence relates.  Thus, a purported identification briefly in foggy conditions in bad light is inherently unreliable, so that, taken at its highest, the probative value of that evidence is not very high at all.[27] 

   [26]Ibid.

   [27]Ibid 314–5 [50].

1. There was nothing in the circumstances in which they occurred which may have adversely affected EW’s perception of relevant events.  She provided detailed representations concerning sexual activity in which she was directly involved.  Thus, taken at its highest, the probative value of her representations is high.  Issues relating to the quality and nature of her memory are directed to the reliability (and possibly credibility) of EW’s representations, and are not the kind of circumstances recognised in IMM — an observation made very briefly in foggy conditions and in bad light — that would compel a conclusion that the probative value of the evidence is weak.

1. Despite the high probative value of the evidence, however, the applicant contends that its probative value is outweighed by the danger of unfair prejudice to the applicant.  In essence, the danger of unfair prejudice arises because there is a real danger that the jury will give the evidence more weight than it deserves.  At the risk of repetition, it seems to us principally that seven propositions may be distilled from the applicant’s submissions:

·     first, the expert evidence establishes the risk that EW’s memory — and therefore her evidence — was contaminated;

·     secondly, EW’s evidence appears to be confident, in circumstances where there is no necessary correlation between confidence levels and reliability;

·     thirdly, the true extent of EW’s psychiatric condition was not disclosed until the relevant records were made available after committal, preventing any meaningful cross-examination of her;

·     fourthly, it will be impossible to mount any real defence without the jury being aware of the applicant’s unrelated prior offending, which the jury will find to be rebarbative;

·     fifthly, the prejudicial effect of the evidence will be increased by the jury knowing that EW died after years of significant psychiatric issues, some of which related to her beliefs about the applicant (EW’s suicide being used by the jury as a form of corroboration);

·     sixthly, EW’s cross-examination at committal was not competent, in that it brought out material unfavourable to the defence whilst at the same time failing to elicit favourable evidence; and

·     seventhly, given that the evidence relates to sexual offending against a child, there is already a danger of the jury’s decision-making being compromised by emotional responses.

1. In our view, the evidence of Professor Thomson and Dr Sullivan is capable of addressing the first, second and third propositions referred to immediately above, and ameliorating any unfair prejudice that might be said to flow from them.  Hence, both experts will be able to educate the jury on the risks of memory contamination, and Professor Thomson’s evidence will make plain that there is no necessary correlation between EW’s confidence in her purported recollections and the objective reliability of her memories.  It is undeniable that a lack of pre-committal disclosure prevented the experts from providing a competent cross-examiner with fertile lines of cross-examination profitable to the defence.  But, assuming he will give evidence at trial, Dr Sullivan will be able to identify for the jury’s benefit the types of questions which might have been asked of the complainant, and which might have shed light on whether her evidence was the product of reliable memory, or whether it has been the product of confabulation, distortion or misinterpretation, produced or promoted by aspects of EW’s intervening mental ill-health.  We would add that the issues discussed by Professor Thomson and Dr Sullivan are directed principally (if not wholly) to the reliability of the EW’s memory, as distinct from the truthfulness and the credibility of the contents of her statements and her evidence at committal.  Accordingly, it is doubtful that the inability of counsel for the applicant to cross-examine the complainant on any aspect of the opinions expressed by the expert witnesses could realistically be seen to be a disadvantage to the applicant at trial.

1. With respect to the fourth proposition, the applicant has a problematic forensic choice to make.  In the ordinary course — given that the prosecution does not seek to rely on the applicant’s earlier unrelated offending to establish tendency or coincidence — the fact that the applicant had convictions for sexual offences against other children would not be admissible in the pending trial involving EW.  If, however, the applicant wishes to challenge the credibility and reliability of EW’s evidence on the basis that her memory may have been contaminated by having had access to the details of the applicant’s offending in other cases — it is difficult to imagine how he might sufficiently challenge EW’s evidence without referring to his previous offending — he must bear the concomitant risk of prejudice from so doing.  Plainly, reference to his previous offences against children will be particularly prejudicial.  Although it might be expected that appropriate directions to the jury should, at least to a material extent, offset that prejudice, it is difficult to conceive that a jury’s perception of the evidence overall would not be tainted by its knowledge of the applicant’s other offending.  Nonetheless, it will remain possible for the applicant to present a viable defence without introducing evidence of the fact that the complainant had resorted to information contained in another case concerning the applicant.

1. As to the fifth proposition, the sad but simple fact is that the representations in EW’s statements and committal evidence are admissible because she is ‘not available’ because she is deceased.  It is clear enough, in our view, that it will be possible for the jury to be apprised of the fact that EW is deceased without also being informed that she committed suicide.

1. So far as the sixth proposition is concerned, we consider that the applicant generally is bound by the way that the cross-examiner chose to question EW.  His cross-examination may not have been particularly competent, and may not have been very helpful to the defence, but it does not follow that the product of that forensic exercise creates a danger of unfair prejudice to the applicant which outweighs the probative value of the evidence.  The manner the cross-examiner employed to question EW arose from a forensic choice by which the applicant is now bound.

1. We pause to observe that our general conclusions concerning the admissibility of EW’s committal evidence should not be seen as foreclosing the trial judge’s discrete consideration — and possible exclusion — of particular parts of the cross-examination. Whilst it is plain that evidence of EW’s witness statements and cross-examination at the committal is admissible under s 65(3) of the Act, in order to ensure that the applicant is not tried unfairly it will be necessary to exclude portions of the evidence; in particular, those parts of the cross-examination in respect of which the probative value is less than its potential prejudicial effect. Indeed, it seems to us that there is a deal of scope for the excision of a number objectionable tracts of the evidence. Subject to any agreement reached by the parties, whether any parts of the evidence are to be excluded will, of course, be a matter for the trial judge to determine following an appropriate application.

1. The final matter, the seventh proposition, is a feature that is common to all jury trials of alleged sexual offending against children. Alone, or in combination with other factors, it could not lead to the exclusion under s 137 of highly probative evidence such as EW’s.

1. Moreover, we consider that any prejudice to the applicant flowing from EW’s absence, and the corresponding introduction at trial of the representations contained in her statements and committal evidence, is amenable to acceptable amelioration by appropriately firm judicial directions.  Thus, it might be expected that the judge will instruct the jury of the need to take into account the disadvantages flowing from an inability to observe EW giving her evidence.[28]  It might also be expected that if, as anticipated, evidence from Professor Thomson and Dr Sullivan is introduced at trial casting doubt on the credibility and reliability of EW’s evidence, the judge will give the jury appropriate warnings on those matters.[29] 

   [28]See Jury Directions Act 2015, s 39.

   [29]See Jury Directions Act 2015, s 32.

1. The trial judge will also need to give detailed directions about EW’s questioning at committal, which, in our view, could not properly be described as ‘cross-examination’.  It was, at best, clumsy and inept.  As a minimum, the judge will need to direct the jury as to the differences between cross-examination at committal and at trial, and instruct the jury to take into account the disadvantages flowing to the defence from the incapacity of counsel at trial to now ‘put’ the defence case and matters important to it.  Depending on the nature and extent of the editing of the evidence, the judge might also have to direct the jury on particular aspects of the cross-examination conducted at committal, including the dubious competence of parts of it.  At the very least, directions along the following lines will be necessary:

Cross-examination of a witness that may be undertaken at a committal proceeding is not uncommonly quite different, and less pointed and directed, than cross-examination which might be expected to be undertaken of that witness at trial.  In the present case, it is clear that the questioning by counsel on behalf of the accused at the committal proceeding was very different to cross-examination of the complainant  which would have been undertaken  at trial if she were available.  In particular, at trial counsel would not have embarked on the free-ranging and undirected line of questioning undertaken by counsel at committal.  Rather, counsel would have focused on the issues in the trial, and would have asked questions, directed to challenging the evidence of the complainant, and in particular to testing the accuracy and reliability of the memory that she said that she had of the incidents that are the subject of the charges against her.  It is important you take this into account when you consider the evidence given by the complainant in her statements and in the committal proceeding.

1. In our view, save that we disagree with his observation as to the quality of EW’s cross-examination, we consider the trial judge’s decision not to exclude the impugned evidence under s 137 of the Act to be unattended by error.

1. The first proposed ground cannot be upheld.

1. As to the second proposed ground, counsel for the applicant also sought to invoke the common law unfairness discretion — in popular usage, the Haddara discretion — in an endeavour to have the impugned evidence excluded, relying on the same features advanced to support the application under s 137. Haddara recognised that there is a general discretion which, despite the promulgation of the Act, continues to inhere in a trial judge to exclude admissible evidence in order that an accused receive a fair trial.[30]  In Luna it was pointed out that, unlike the judicial task under s 137, the judicial task when Haddara principles are invoked involves a true exercise of discretion, so that there can be no doubt that this Court’s examination of the judge’s ruling attracts House[31] considerations.[32]

   [30]Haddara, 59 [16], 70–77 [51]–[70] (Redlich and Weinberg JJA); 100–105 [158]–[175] (Priest JA dissenting).

   [31]House v The King (1936) 55 CLR 499.

   [32]Luna (a pseudonym) v The Queen [2016] VSCA 10, [43] (Redlich, Priest and Beach JJA).

1. For the same reasons that we would not uphold the applicant’s challenge under s 137, we would not uphold the applicant’s challenge to the judge’s exercise of the Haddara discretion.  Whilst we acknowledge that there will be some prejudice to the defence case resulting from EW’s absence at trial, as things now stand, the extent of that prejudice is not of such an order to compel the conclusion that her absence will result in a trial that will be unacceptably unfair.  In our view, any unfairness flowing to the applicant is not so great as to permit the removal of the very heart of the prosecution’s case.

1. The second ground is without substance.

1. Once it is appreciated that the representations in EW’s statements and committal evidence are admissible under s 65 of the Act, and that there is no warrant for their exclusion under s 137 or pursuant to the Haddara discretion, it is plain that there is no basis upon which a permanent stay of proceedings could properly be ordered.  

1. In particular, the submission that the existence of the Phelan notes compels the conclusion that charges 1 to 32 are foredoomed to fail cannot be accepted.  

1. When a stay of proceedings is sought on the basis that the charge or charges are foredoomed to fail, the principles to be applied are those laid down by the Full Court in Smith.[33] Those principles have been applied in a number of cases across several jurisdictions,[34] and are not in doubt.[35]  Thus, a permanent stay of a charge on an indictment may only be granted if it is quite clear that the charge or charges inevitably must fail.  For the purposes of the present application the Court should take the prosecution case at its highest.  The Court must therefore approach the application as if each of the critical facts in the prosecution case was capable of being made out.[36]

   [33]R v Smith [1995] 1 VR 10 (‘Smith’).  See also Nelson (a pseudonym) v DPP (Cth) (2014) 44 VR 461, [6]-[11] (Maxwell P, Redlich and Priest JJA) (‘Nelson’).

   [34]R v Leece (1996) 65 FCR 544 (Gallop, Burchett and Hill JJ); R v Petroulias (No 1) (2006) 217 FLR 242 (Johnson J); R v McGee (2008) 102 SASR 318 (Doyle CJ, Gray and White JJ); R v Azad [2007] VSC 115 (Curtain J); DPP (Cth) v County Court of Victoria (2010) 239 FLR 139 (J Forrest J); Nelson.

   [35]The Full Court’s decision was later overturned by the High Court in Smith v The Queen (1994) 181 CLR 338, but that was because it was held that the Full Court did not have power to entertain an appeal by the Crown against the trial judge’s decision to grant a stay. The principles upon which the Full Court purported to decide the case were not, however, put in doubt.

   [36]Nelson, 462–3 [6]–[11].

1. In the present case, it cannot realistically be concluded that the contents of the Phelan notes necessarily will compel a jury to have a reasonable doubt about the credibility and reliability of EW’s representations concerning the events which are the foundation of charges 1 to 32.  Given the circumstances in which EW came to make her statements, and bearing in mind her evidence in the committal, we consider that it will be well open to a jury to be satisfied beyond reasonable doubt about the truth, credibility and reliability of the representations contained within them.

1. Furthermore, adding delay to the other matters relied upon to establish that there is prejudice to the applicant’s case, we are unable to see that the continuation of the proceedings would involve unacceptable injustice or unfairness, or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.[37]  There is nothing rare or exceptional about the circumstances of this case.[38]  Hence, the judge would have erred had he acceded to the application to grant a permanent stay.

   [37]Hermanus (a pseudonym) v The Queen (2015) 44 VR 335, 342–3 [39] (Priest JA). See also Walton v Gardiner (1993) 177 CLR 378, 392 (Mason CJ, Deane and Dawson JJ); 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; R v Edwards (2009) 255 ALR 399.

   [38]Williams v Spautz (1992) 174 CLR 509, 529; Jago, 31 (Mason CJ), 60 (Deane J), 76 (Gaudron J).

1. The third proposed ground is devoid of merit.

Conclusion

1. In light of the foregoing, leave to appeal against the interlocutory decision should be refused.

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