Brewer (a Pseudonym) v The Queen [2017] VSCA 117

1 This is an application for leave to appeal pursuant to s 295(2) of the Criminal Procedure Act 2009 ('CPA') against an interlocutory decision made by a judge of the County Court refusing to grant a permanent stay of the proceeding or to sever two charges from the indictment.

2 The interlocutory decision was made by the judge in a pre-trial ruling dated 26 October 2016 ('Ruling'). On the same day, the judge granted a certificate pursuant to s 295(3)(b) of the CPA to enable the applicant to seek leave to appeal against the Ruling.

3 The applicant has been charged with six charges of indecent assault (charges 1, 2, 3, 4, 7 and 8), one charge of rape (charge 5), one charge of sexual penetration of a child under 16 years of age (charge 6, which is as an alternative to charge 5) and one charge of gross indecency in the presence of a child under 16 years of age (charge 9, which is as an alternative to charge 8).

4 The offending is alleged to have occurred between 1 January 1982 and 31 December 1988. The complainants are the daughter and son of the applicant's then partner. Charges 1, 4, 5, 6, 7, 8 and 9 relate to the female complainant and charges 2 and 3 relate to the male complainant. At the time of the alleged offences, the female complainant was between nine and 15 years of age and the male complainant was between 11 and 17 years of age. The applicant was then between 36 and 42 years of age.

5 At the time of his arrest for the alleged offences in June 2014, the applicant was 67 years of age, the female complainant was 41 years of age and the male complainant was 43 years of age. The complainants' mother died on 27 August 1998.

6 The Summary of Prosecution Opening dated 13 April 2016 ('Prosecution Opening') refers to a number of uncharged acts, including an alleged rape of the female complainant by the applicant in 1989 while the two of them were overseas.

7 The applicant made a pre-trial application for a permanent stay of all charges, exclusion of evidence of the alleged overseas rape and severance of charges 2 and 3 (which, as we have said, relate to the male complainant) from the remaining charges.[2] The application for the stay relied on the combined effect of a number of matters including, in particular, the death of the complainants' mother. The application for severance of charges 2 and 3 relied on what was said to be an unacceptable risk that a jury would impermissibly use evidence of the female complainant on the other charges to make up for the absence of, or deficiency in, the evidence of the male complainant relating to charges 2 and 3.

8 The trial judge refused both the stay and severance applications. However, he decided to exclude evidence relating to the alleged overseas rape and certain other evidence, including evidence by the female complainant that she had complained to her mother that the applicant had sexually abused her.

9 The applicant seeks leave to appeal on two grounds. The first is that the judge erred in the exercise of his discretion in refusing to permanently stay the proceeding, and the second is that the judge erred in the exercise of his discretion under ss 193(1) and 193(3)(a) of the CPA in refusing to sever charges 2 and 3 from the indictment.

10 There being no argument that the judge misdirected himself or that there was specific error, the applicant relies on the final ground identified in House v The King.[3] That ground can only succeed if it is established that the decision was 'unreasonable or manifestly unjust'. Counsel for the applicant accepted that it had therefore to be shown that it was not reasonably open to the judge on the material before him to reach the conclusions which he did.[4]

11 For the reasons that follow, the application for leave to appeal will be refused.

12 On 4 December 2013, the female complainant, who was then 40 years of age, gave an account of the alleged offences in the form of a Visual and Audio Recording of Evidence ('VARE'). A VARE was conducted because the female complainant is cognitively impaired within the meaning of ss 3 and 366(2)(b) of the CPA by virtue of a diagnosis of chronic post-traumatic stress disorder with features of a major depressive disorder. The male complainant provided two statements to police, the first in February 2014 and the second in September 2016. The applicant was interviewed by police on 6 June 2014.

13 During the period of the alleged offences, the complainants were living with their mother in a number of Melbourne suburbs and interstate. The applicant was in an on and off de facto relationship with the complainants' mother between 1979 and 1989 and lived with the family for periods during that time. The applicant and the complainants' mother were both born overseas and separately migrated to Australia. They first met in 1979 through a friend of the complainants' mother.

14 The following summary of the applicant's alleged offending is based on the female complainant's VARE, the male complainant's statements and the Prosecution Opening.

15 Charges 1 and 2 arise from the same alleged incident. Charge 1 relates to the female complainant and charge 2 relates to the male complainant.

16 The female complainant's evidence is as follows. On a date in 1982, when the family was living in a flat in an inner Melbourne suburb, the applicant was left in charge of the complainants while their mother worked night shift as a nurse. The female complainant was nine years old and her brother was 11 years old. The applicant was sitting on a chair in the lounge room with a jug of wine with the television on late in the evening. He became intoxicated and told the complainants to kneel down on the carpet. They did so and the applicant then told them to take turns licking his penis.

17 The male complainant's evidence is that he 'cannot remember [the incident the subject of charges 1 and 2] at all'.

18 In his record of interview, the applicant denied that the incident occurred.

19 Charge 3 relates to an incident which is alleged to have occurred on a date between 1 January 1982 and 20 December 1982 when the male complainant was 11 years old and the family was living in the same inner Melbourne suburb. His evidence is as follows. He had some red wine with his dinner and the applicant then put him to bed. He heard the applicant pull the applicant's pants down and he then felt the applicant's penis rubbing across his mouth. He immediately pushed the applicant's penis away and said: 'What's that? What are you doing?'. He then heard the elastic of the applicant's pants being pulled up. The applicant then left the room.

20 In his record of interview, the applicant denied that the incident occurred.

21 Charge 4 relates to an incident which is alleged to have occurred on a date in 1984 when the female complainant was 11 years old and the family was living in a south-eastern suburb of Melbourne. Her evidence is as follows. The applicant went into her bedroom and masturbated in front of her. She was lying down on the bed in her pyjamas. The applicant then kissed her and put his tongue in her mouth. He removed her pyjama bottom and placed his fingers in her vagina. At that time, her mother was at work and her brother was in his room.

22 In his record of interview, the applicant denied that the incident occurred.

Charge 5 (rape) and alternative charge 6 (sexual penetration of a child under 16)

23 Charge 5 and alternative charge 6 relate to an incident which is alleged to have occurred on a date in 1985 when the female complainant was 12 years old and the family was living in the same south-eastern suburb of Melbourne. Her evidence is as follows. The applicant went into her bedroom at night and lay on top of her. He then removed her pants and forced his penis into her vagina. She could not breathe. She was screaming and telling the applicant to stop, as he was hurting her. The applicant said: 'Don't say anything. I'm gunna kill youse all.' She tried to push him off and in the process her face was scratched by his watch. She believes that she then passed out. When she regained consciousness, the applicant told her to tell her mother that she accidentally hurt herself with the vacuum cleaner. After this incident, she wet her pants at school and her mother had to collect her.

24 In his record of interview, the applicant denied that this incident had occurred.

25 Charge 7 relates to an incident which is alleged to have occurred in 1987 when the female complainant was 14 years old and the family was living in another south-eastern suburb of Melbourne. Her evidence is as follows. From time to time, the applicant drove her to school in his car. On this occasion, on the way to school, the applicant gave her a love heart locket and said: 'You can put a photo of me in it - this is our love'. The applicant then rubbed her inner thighs and her vagina over her underpants with his hand.

26 In his record of interview, the applicant said that he gave the female complainant a gold locket as a present when she was around 14 or 15. He gave it to her when they were at home and did not say that she could put his photograph in it. He agreed that it was probable that he sometimes drove the female complainant to school but he denied that the incident described by her occurred in his car.

Charge 8 (indecent assault) and alternative charge 9 (gross indecency)

27 Charge 8 and alternative charge 9 relate to an incident which is alleged to have occurred in 1988 when the female complainant was 15 years old and the family was living in an inner Melbourne suburb. Her evidence is as follows. One day, (possibly a Saturday) her mother was working day shift and she and the applicant were the only ones at home. He took her to his bedroom which he shared with her mother. He undressed her and told her he was teaching her what to do. He was also naked and he made her look at her naked body and his erect penis in a big mirror. The applicant told her to turn around to the other side of the bed. She was lying down on the bed while he was standing up. The applicant then left the bedroom and in that brief moment she pulled on some of her clothes and ran out of the flat. The applicant ran after her. She knocked on the security door of the next door neighbour and an Italian woman came to the door. The female complainant asked the neighbour to let her in, saying: 'Help me, let me in.' The applicant told the neighbour that the female complainant had burnt a cake.

28 The female complainant said that she returned to the flat with the applicant and he took her back to his bedroom. She cannot recall the events after this except that she was again naked and that someone came to the door and was knocking on it because that person could not get in. At first she did not know who it was, but then she saw it was her brother and his friend. Her brother 'walked in and saw what happened'. The applicant was 'interrupted' and was pulling his pants up. She was embarrassed and crying because she was naked.

29 In her VARE, the female complainant also gives evidence of discussions with her mother after the latter arrived home on the day of this incident. Although the judge decided to exclude this evidence pursuant to s 137 of the Evidence Act 2008, as the parties referred to it in the course of argument before us, we will summarise it briefly. The female complainant said that, when her mother arrived home, her mother would have seen that she was crying. There was a 'family talk' during which she would have told her mother what had happened. She remembers telling her mother but not the words she used. As a result, the applicant was kicked out of the house again. A couple of days later, her mother took her across the road to a phone booth and told her to 'call [the applicant] and tell him you want to take him to court'. She called the applicant's number and told him 'I'm not a prostitute'. He responded 'I like that'. After some weeks, her mother took the applicant back in.

30 The male complainant's evidence in relation to charges 8 and 9 is as follows. On one occasion when his family was living in an inner Melbourne suburb, he arrived at the front door of the flat after being out with his then best friend playing pool. They could hear a scuffle or something going on inside the door. Upon trying to gain entry to the door they could not. He could hear his sister calling out his name. The door suddenly opened and he saw his sister and the applicant standing at the door. His sister's face was full of tears. He asked her what happened and she replied 'it was alright now'. He cannot recall finding his sister naked or in stages of undress.

31 The male complainant's friend has made a statement in which he said that, on one occasion, he and the male complainant went to the latter's flat and, when they entered, they saw the female complainant crying.

32 In his record of interview, the applicant denied that this incident occurred.

Excluded evidence of an alleged rape overseas and complaints about it

33 In her VARE, the female complainant provides details of an overseas trip taken by her and the applicant. The judge decided to exclude her evidence about any sexual abuse by the applicant during that trip and about the complaints of such abuse she said she made both before and after her return to Australia, pursuant to s 137 of the Evidence Act 2008. Although the female complainant's evidence has been excluded, as it was referred to by the parties in the course of argument before this Court, we set it out below.

34 The female complainant said that the applicant wanted to go to the country of his birth because some relatives were ill. As her mother could not take time off work, she volunteered to go with the applicant. He had promised her mother that he would marry her and that he would 'not touch' the female complainant. When they arrived, she initially stayed with her mother's family while the applicant stayed with his family in a different village. After a week or so, the applicant came to pick her up to stay with him. Her evidence continued:

[A]s soon as we got on the bus, it was half an hour or so in the trip, he made the bus driver stop at a bus stop and ... he took me off the bus and it was just fields ... And he threw me down and he pulled my pants down and he started putting his penis in me. And I was crying, 'No, don't, no,' and then - and he wouldn't stop, and I was crying, 'No, no, no, no, no.' So he finally stopped, but it wasn't straightaway. He didn't stop straightaway. But anyhow, I go back to his mum's place and I said, 'He raped me, he raped me. Please, please help me, help me.' No-one helped me there, no-one helped me. So I got there and his mum said to me, 'What's the matter?' She sat down next to his bed, in his room, and said he used to touch her ... he used to touch his own mother. And then we stay overnight, so I lay down next to her. And then he's lying down next to me, after all that he did to me. ...

...

I was lying in the bed with him overnight and then he took me back to my mum's sister's place, my aunty, and I said, 'Look, can I call my mum?' And then I just called my mum and I said, 'He did it again.' ... That's what I said to mum, 'He did it again.' And then ... my mum said, 'I wanna speak to him.' ... And my mum just said, 'You' - well, swore to him in [a foreign language]. 'You get her back safely.' So he got me back in safely.

35 In his record of interview, the applicant initiated a discussion about the overseas trip. He said that he and the female complainant missed the bus and walked towards his village, which was about five kilometres from where they were. After about three kilometres, the female complainant said she had stomach trouble and went into a cornfield near where they were sitting to take a break. He followed her in to bring her tissues. She had her jeans down and made an offer in the following terms: '[D]on't put ... [your] penis in but you can play ... with the finger'. He refused her offer. He did not have sex with her while on that trip or at any other time. When they returned to Australia, he told the female complainant's mother and the female complainant agreed with the applicant's account when her mother asked her.

36 The applicant said that he had evidence that the female complainant went overseas a virgin and came back a virgin. He said that while they were away, there was an English-speaking boy with whom the female complainant went to the cinema and parks. As a result, when they returned, in the presence of 'another lady', the applicant pushed the female complainant's mother to take her to the doctor to see if she was still a virgin. The mother and the other lady told him that the doctor said that the female complainant was a virgin.

Evidence relating to the applicant's erectile dysfunction

37 It is part of the defence case that, at the time of the alleged offences, the applicant suffered erectile dysfunction, which made improbable any offending involving penile penetration or exposure of his erect penis to the female complainant (charges 5, 6, 8 and 9). The applicant relies on a medical report dated 22 March 2016 which was prepared by an endocrinologist. She examined the applicant and considered blood tests which indicated that he suffered from 'hypergonadotropic hypogonadism', a condition which affects the male testes. She concluded as follows: 'My overall impression is that this gentleman has had primary testicular failure and the history suggests this has been longstanding'. As part of the applicant's history, the endocrinologist noted that he reported 'never having had sexual function or intercourse'.

38 The Crown relies on a report dated 19 May 2016 which was prepared by a forensic physician. He stated that there was evidence of hypergonadotropic hypogonadism, a condition which may show a range of symptoms including erectile dysfunction. He said it was not possible to assess when the condition developed. He also said that studies show that normal penile erection and male sexual behaviour is possible in subjects with underdeveloped genitals or hypogonadism, including hypergonadotropic hypogonadism. The forensic physician concluded that the existence of the condition hypergonadotropic hypogonadism does not mean that erection cannot occur.

39 In his record of interview, in response to an allegation put to him that he had inserted his penis in the female complainant's vagina, the applicant said: 'Then what I doing with her mum? Why I sleep with ... her mum together?'

40 In his second statement, the male complainant said that he remembers that his mother and the applicant 'had lots of sex'. He stated as follows:

I remember always hearing them going at it. It was obvious from the sounds they were making that they were having sex.

One time when I was around I think fifteen years old, I caught [them in] the act. We were living [interstate] and I remember the place was a small unit with bedrooms upstairs. The bathroom was also upstairs. Mum's room was off to the left of the bathroom.

It was during the day and for some reason and I cannot remember the reason I had to see mum about something. I just walked straight into her room.

... I saw [the applicant] on top of my mother. I could see his naked bum and balls. Mum was underneath him and partially naked. I didn't see his penis but I knew what he was doing with it.

41 The male complainant stated that he recalls another occasion when he was an adult and he drove to the applicant's house. He walked along the side of the applicant's house and as he passed a window he could hear the applicant and a woman with whom he was having a relationship at that time, having sex. He said the woman was calling out in a foreign language and he 'understood it enough to know that she and [the applicant] were engaged in a sexual act'.

42 As we have stated at [29] and [33] above, the judge decided to exclude complaint evidence relating to the incident described in charges 8 and 9 and the alleged overseas rape. However, the judge has not made any ruling in relation to complaint evidence by a school friend of the female complainant, the female complainant's husband a[5]d the male complainant.5 The latter's evidence is as follows. He became aware that the applicant had abused the female complainant when she confided in a former girlfriend of his, who then told him. He confronted his mother and she 'was in denial as she just looked shocked but said it didn't happen'.

GROUND 1: REFUSAL TO PERMANENTLY STAY PROCEEDING

The learned trial judge erred in the exercise of his discretion in refusing to permanently stay the proceedings.

44 A court should only grant a permanent stay in rare or exceptional circumstances where the continuation of the proceedings would involve 'unacceptable injustice or unfairness, or if the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process'.[6] Unacceptable injustice or unfairness can result from 'a probable forensic disadvantage which is incurable'.[7]

45 In Jago v District Court (NSW),[8] Mason CJ described the position as follows:

[T]he touchstone in every case is fairness. ...

...

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' ...[9]

46 In Hermanus (a Pseudonym) v The Queen,[10] Priest JA (with whom Maxwell P agreed) set out the following propositions which he drew from Osborn JA's judgment in R v FJL[11] and the cases cited by Osborn JA in that case:

First, the exercise of the power to stay must be exceptional since it results in effect in a refusal to exercise jurisdiction. The primary responsibility for deciding whether criminal proceedings should be maintained lies with the Executive and not with the court.

Secondly, in cases involving delay, 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. The accused must demonstrate that the delay is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute.

Thirdly, circumstances that the court should consider in determining an application for a stay include: the length of the delay; reasons given by the prosecution to explain or justify the delay; the accused's responsibility for and past attitude to the delay; proven or likely prejudice to the accused; and the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime. The critical factors are on the one hand the proven or likely prejudice to the accused, and on the other, the public interest in the prosecution and conviction of the guilty.

Fourthly, in order to justify a stay, it is the probability of unacceptable unfairness - rather than the possibility - that is critical.

Fifthly, a trial will not necessarily be unacceptably unfair even where relevant documents, recordings or other kinds of evidence have been lost or destroyed, or witnesses have died, so that the jury will be called upon to determine issues of fact on less than all of the relevant material which might bear upon the issues thrown up for determination.

Sixthly, the trial judge may avoid obstacles to a fair trial by evidentiary rulings - including by the exclusion of evidence which is technically admissible, but which might operate unfairly against the accused - and by directions to the jury designed to counteract any prejudice that the accused might otherwise suffer.[12]

47 Priest JA also referred to the following summary of the principles outlined in a decision of the Supreme Court of New Zealand:

(a) Delay between offending and prosecution does not erase criminal liability and the adoption of limitation periods is for Parliament and not the courts. There is no scope for a presumption that after a particular time memories are too unreliable for the purposes of a criminal trial.

(b) The adequacy or otherwise of the explanation for delay may be relevant to credibility but perceived inadequacy of such explanation of itself is not a ground for a stay, at least in the case of serious crime.

(c) A judge should grant a stay if persuaded that, despite the operation of the burden and standard of proof and the steps which a trial judge must take to mitigate the risk of prejudice, there cannot be a fair trial.

(d) The exercise does not turn on whether the Judge is satisfied on the balance of probabilities as to any particular item of alleged prejudice (for instance, that but for the delay there would have been identifiable evidence which would have assisted the defendant). Rather what is required is a judicial evaluation based on assessments of the circumstances as they are at the time of trial and of the likely prejudicial effects of the delay.

(e) Material to such assessments will be the availability (or more commonly, the unavailability) of defence witnesses, relevant documents and independent evidence of whereabouts and activity, the general impact of time on memory, any deterioration in the defendant's physical or mental health (with consequent impact on ability to mount a defence), indeterminacy as to the specifics of the alleged offending (particularly where an isolated act of offending is in issue) and the apparent strength or weakness of the Crown case.

(f) While a defendant facing serious charges will usually have to be able to point to tangible delay-related prejudice, a combination of a very lengthy delay and a weak Crown case may justify a stay.

(g) Judges must approach stay applications on the basis that an evaluative assessment is required of the facts of the case at hand without any presupposition as to what the result should be.[13]

48 Hermanus involved a delay of 39 years. Priest JA accepted that 'any trial relating to alleged events that are decades old inevitably will be attended by a degree of unfairness and prejudice to the accused':[14]

Since events and circumstances contemporaneous to the events the subject of charges are usually incapable of any meaningful investigation, more often than not the accused is driven to a bald denial of misconduct, without the ability to present independent evidence contradicting or casting doubt on a complainant's account. The opportunity to present an alibi is, in my experience, virtually non-existent. Moreover, with respect to those who hold a different view, I doubt the capacity of the average juror to readily comprehend the true extent of the unreliability and inaccuracy of memory where there has been the intervention of many years between the alleged events and their recounting.[15]

49 Priest JA stated, however, that even in cases of very long delay, it was possible for an accused to receive a trial which is 'not unacceptably unfair, despite the trial being attended to some extent by unfairness, prejudice or forensic disadvantage'.[16] In that case, the trial judge had refused to stay the proceeding, holding that the forensic disadvantage to the accused could be sufficiently ameliorated by the exclusion of evidence of uncharged acts and by the giving of a forensic disadvantage direction. This Court refused leave to appeal.[17]

50 FJL concerned 12 charges of indecent assault on a child under 16 years of age and involved delay of between 32 and 38 years. This Court upheld a stay of one charge which involved offending said to have occurred in a bedroom adjacent to the accused's parents' bedroom. Given the death of the accused's parents, the loss of the potential to call evidence from them was held to be, in the circumstances, 'a probable forensic disadvantage which is incurable'.[18] The Court held that a stay was not warranted in relation to the other charges because any forensic disadvantage to the accused could be sufficiently ameliorated by a forensic disadvantage direction and the exclusion of particular evidence.

51 In Bauer (a Pseudonym) v The Queen,[19] the alleged offending in respect of the charges relating to one of the complainants took place 46 or 47 years before the trial, and 44 years before that complainant's report to police. Priest JA considered that a delay of such magnitude was exceptional, even for a case of 'historical' sexual offences.[20] The types of prejudice arising from the delay included the deleterious effect of the delay on the reliability of the complainant's recollection, and the loss of opportunity to produce evidence as to time, place and circumstance that could cast doubt on the complainant's version of events. Priest JA considered, however, that if those were the only matters that could be pointed to, he 'might have felt constrained by authority to conclude that a permanent stay was not warranted'.[21]

52 There was one additional circumstance on the facts of Bauer which led Priest JA to conclude that the charges relating to one of the complainants should have been stayed by the trial judge. It was that the complainant had allegedly made a complaint to her mother who was now deceased. In circumstances where that evidence was ruled admissible by the trial judge, Priest JA held that 'the loss of the opportunity of adequately testing the circumstances surrounding the supposed complaint adds a further dimension to the prejudice already flowing to the [accused] through the effluxion of time'.[22]

53 The authorities demonstrate that, in the case of historical sex offences, the delay in the laying of charges produces various forms of forensic disadvantage. Some forms of disadvantage are general in nature, such as the impairment of memory, while others are specific, such as the death of a witness or the non-availability of documentary evidence. Some forms of disadvantage are of little consequence, such as the death of one of a large number of witnesses whose evidence is identical, while others are capable of drastically undermining a successful defence to a charge, such as the death of a sole exculpatory witness. Some forms of forensic disadvantage can be sufficiently ameliorated - by measures such as appropriate jury directions, the exclusion of some evidence or the severing of some charges from the indictment - while other forms are incurable. Whether a claimed forensic disadvantage is based on a single factor or a combination of factors the task of the court in dealing with an application for a permanent stay is to assess whether the lost opportunity to adduce exculpatory evidence, or to impugn prejudicial evidence, is such as to meet the high hurdle set by the test of whether the trial is rendered unacceptably unfair.

54 The judge referred to Hermanus, FJL and Bauer - discussed above[23] - and identified the relevant principles as those articulated by Priest JA in Hermanus.[24] The judge concluded that a stay ought to be refused after considering six matters, the combined effect of which was relied upon by the applicant in support of the stay application. The judge did not give separate reasons for each of the six matters but noted that he had 'considered all the claimed aspects of prejudice, both individually and collectively in reaching [his] determination on [the] application for a stay.'[25]

55 The first matter was the passage of time since the alleged offending, which ranged from 28 to 34 years. This delay was said to be the cause of both presumptive significant forensic disadvantage and probable significant forensic disadvantage.

56 The second matter was the death of two potential witnesses, the complainants' mother and the neighbour. The applicant relied on the death of the mother not only in relation to the charged conduct but also in relation to the uncharged acts that were set out in the Prosecution Opening. The uncharged acts included alleged acts of violence by the applicant against the complainants and their mother.

57 In relation to the evidence of uncharged acts, the judge said that it was speculative to suppose that the mother may have given evidence of a non-violent loving relationship and that the lack of evidence on this topic could be the subject of an appropriate forensic disadvantage warning.[26]

58 In relation to the charged conduct, the judge noted that the female complainant did not suggest that any of that conduct occurred within the presence of or hearing of her mother, but rather the conduct was alleged to have occurred either in the absence of the mother or in circumstances of isolation from others.[27]

59 The judge concluded as follows as to the relevance of the evidence of the mother and the neighbour:

With respect to Charges 1 and 2 whilst the mother may have been able to give evidence of surrounding circumstances the lack of her evidence is, in my view, capable of amelioration by virtue of a forensic disadvantage warning. With respect to Charge 3 the absence of evidence from the mother can similarly be remedied, in my view, by a forensic disadvantage warning. With respect to Charge 4 the absence of evidence from the mother can similarly be remedied by a forensic disadvantage warning.

With respect to Charges 5 and 6 the absence of evidence from the mother can, in my view, again be remedied by a forensic disadvantage warning. In particular, absence of the mother's evidence concerning the existence of any injury of the [female] complainant and the [female] complainant providing, what on the [female] complainant's version of events is a false explanation, that it was inflicted by a vacuum cleaner, and the mother's attendance at the complainant's school due to the [female] complainant wetting herself.

These are, in my view, circumstantial matters capable of a forensic disadvantage warning to ameliorate any prejudice arising from the unavailability of the mother and they are not such that they result in irremediable prejudice justifying a stay in my view.

...

With respect to Charge 7 again, this alleged offence is alleged to have occurred in the absence of others. In this case during a motor vehicle trip where the [applicant] is alleged to have been taking the complainant to school. I am not of the view that allowing the trial of this charge to continue occasions irremediable prejudice.

Finally with respect to Charges 8 and 9, firstly the interaction with the neighbour during this incident is described in the [female] complainant's VARE recording ... Whilst I appreciate that the [applicant] may deny any such interaction occurred at all, it appears to me somewhat speculative to suggest that the neighbour may in effect have been able to prove that the interaction which the complainant refers to did not occur or occurred in a materially different way that is somehow significant to the issues in the trial.

In my view a forensic disadvantage warning can ameliorate the prejudice arising from the absence of the neighbour as a witness in the trial. Following on from the incident grounding Charges 8 and 9, the [female] complainant either directly or by implication makes reference to a complaint having been made by her to her mother of the [applicant's] alleged sexually inappropriate behaviour with her ... [T]here is reference [in the VARE to] a complaint to the mother and a consequent phone call to the [applicant]. ...

I am of the view that the inability of the [applicant] to test whether or not this complaint was in fact made and its contents does create prejudice and I would exclude evidence of it and the phone call made to the [applicant] consequent upon a complaint to the mother, subject to any relevance this may assume as result of the manner in which the defence conduct their case.[28]

60 The third matter was the absence of evidence of any medical examination of the complainant due to the lack of any contemporaneous complaint. The fourth matter was the unavailability of any contemporaneous schooling, work or medical records which may have enabled contradictory or other evidence to have been obtained or fixed the alleged events in time more precisely allowing for alibi or other investigations to have occurred. In relation to these matters, the judge concluded as follows:

There is no suggestion that the [female] complainant made a complaint to school teachers, proximate to the alleged offending of Charges 5 and 6. And the absence of possible school records which may have made reference to the complainant wetting herself, it appears to me, can also be the subject of a forensic disadvantage warning.

The fact that the [female] complainant cannot recall whether or not she attended a GP in response to what she alleges was an injury caused by the [applicant's] watch striking her to the face, and the possibility that there may have been a medical record of such attendance is, in my view, also capable of amelioration by a forensic disadvantage warning. It is not suggested that there was any disclosure or complaint that was made by the [female] complainant to any GP, at around this time, by her.[29]

61 The fifth matter was the date range of the charged offences, each of which spans approximately one year, which was said of itself to contribute to unfair prejudice.

62 The sixth matter was the loss of an opportunity to establish at the relevant time that the applicant suffered from erectile dysfunction, thus making it improbable that the offending - particularly the incidents the subject of charges 5 and 6 - would have occurred. The judge considered the medical reports referred to at [37]-[38] above. He described as 'essentially speculative' the assertion that a medical examination at the time of the alleged offending may have yielded evidence of erectile dysfunction, rendering an erection at the time[30]mpossible or unlikely.30 The judge said that there was nothing to prevent the applicant from relying on the medical material advanced on the stay application, before a jury, should he wish. However, he said there was other material that may be capable of supporting an inference that the applicant was capable of normal sexual function. That evidence included the applicant's statement in his record of interview that he was sleeping with the complainants' mother, and the evidence that the male complainant could give of observations he made at the relevant time which could be consistent with the applicant and the complainants' mother havin[31]a sexual relationship.31

63 The judge decided to exclude the evidence relating to the overseas trip, and the alleged rape of the female complainant by the applicant there, as well as evidence of the subsequent complaints said to have been made to family members and to the mother in Australia. That evidence was excluded for the following reasons:

I would exclude all of this evidence as I am of the view that the inability of the [applicant] to test whether or not the complaints were in fact made and their content, does create prejudice such that I am minded to exclude evidence of the [overseas] trip ... subject to any relevance it may assume as a result of the manner in which the defence conduct their case.

In addition I am of the view that the probative value of the alleged rape ... being led as an uncharged act for contextual purposes is outweighed by the danger of unfair prejudice to the [applicant]. In my view there is an unacceptable risk that this evidence would assume an unwarranted significance in the trial to that which it should probably occupy.

This is so having regard to the fact that the complaint evidence of the complainant cannot be properly tested regarding this incident. It is led only for contextual purposes yet it arguably is a very grave example of allegedly sexually inappropriate behaviour having been engaged in by the [applicant]. It occurs after the charged acts and whilst I understand for jurisdictional reasons it cannot be a charged act, its contribution to an understanding of the context of the charged offences is limited by it occurring after the incident relied upon to ground Charges 8 and 9.

I note that at question 136 and following of the [applicant's] interview he speaks of pushing the mother of the [female] complainant to take her to a doctor on his return to [Australia] and that it was conveyed to the [applicant] that everything was all right and the doctor said that the complainant was a virgin.

This assertion appears to be based on second-hand hearsay. That is the [applicant] recounts what he was told by the mother of the complainant recounting what she says the doctor in question supposedly said to her. So far as the lack of contemporaneous medical, work and school records are concerned I have considered these in conjunction with the other instances of claimed prejudice and I do not propose to alter the orders that I have already foreshadowed.[32]

(a) the applicable legal principles in relation to the granting of a stay are those set out at [44]-[53] above;

(b) the judge had correctly identified those principles and had applied them to all the matters upon which the applicant relied in support of the stay application;

(c) the judge had not made any specific error in applying those principles to those matters;

(d) the decision to refuse a stay was a discretionary decision, which could be challenged in accordance with the principles in House v The King.[33]

65 The applicant submitted that the principles in House v The King were satisfied in the present case because there were a number of factors which, when combined with delay, meant that the only decision that was open to the judge was to grant a stay. The factors identified by the applicant are consistent with those raised before the judge, and are as follows:

(b) the lack of opportunity to explore whether any medical examination of the complainant was carried out;

(c) the delay between the alleged offending and the trial;

(d) the lack of specificity with respect to dates of the alleged offences;

(f) the lack of opportunity for a contemporaneous medical examination of the applicant.

66 The applicant submitted that, in combination, the above factors resulted in 'incurable forensic disadvantage', such that any trial would be unacceptably unfair, despite any directions that might be given in an attempt to ameliorate the unfairness. The applicant submitted that 'the only cure in this case is a permanent stay'.

67 In particular, the applicant submitted that a delay ranging from 28 to 34 years is properly described as 'gross', and that this delay alone creates 'presumptive significant forensic disadvantage'.

68 The applicant relied on Mason CJ's statement in Jago[34] set out at [45] above. The applicant submitted that the question of prejudice must be assessed on a case by case basis and relied on this Court's decision in FJL which he said was analogous to the circumstances of this case. According to the applicant, the loss of potential to call evidence from the complainants' mother and the neighbour is a 'probable forensic disadvantage which is incurable', comparable to the loss of potential to call evidence from the accused's parents in FJL.

69 According to the applicant, the presence of the mother is inextricably bound up with the narrative of both complainants. He submitted that, if the mother were still alive, she would be in a position to comment about her working hours and habits at the relevant time and her hours and arrangements for the children while she was at work. Without the ability to cross-examine the mother, the applicant contended, he is 'simply left with bald denials'.

70 The applicant submitted that the mother's evidence in relation to charges 5 and 6 would be crucial in two respects: first, as to whether there had been an incident in which the female complainant had suffered an injury and said it was caused by the vacuum cleaner; and, secondly, as to whether the mother had had to attend school the following day due to the female complainant wetting her pants, and what she had said about that. According to the applicant, if the allegations had been made promptly, it would have been possible to obtain school records pertaining to this incident, evidence of witnesses, and a medical examination of the female complainant. Because of the delay and the death of the mother, however, none of this evidence can be explored.

71 The applicant similarly submitted that the opportunity has been lost to question the mother about whether a medical examination occurred following the overseas trip and if so where and when it occurred. That would have enabled him to obtain medical records of the examination. According to the applicant, those medical records would be exculpatory.

72 In relation to the death of the neighbour, the applicant submitted that the evidence from that witness would be relevant to charges 8 and 9.

73 The applicant also submitted that, if a contemporaneous complaint had been made by the female complainant, his medical condition with respect to his hypergonadotropic hypogonadism could have become known through medical examination and testing. He further contended that, if the mother were alive, she could give evidence crucial to this issue by stating whether he was capable of maintaining an erection and whether they actually engaged in sexual intercourse. According to the applicant, the evidence of the mother would have been more reliable than the jury hearing from the male complainant, who was a child at the time and was now relying on memories from decades earlier.

74 According to the applicant, he worked at a factory, on occasion for very long hours. He submitted that, due to the passage of time, and the broad range of each charge date, it was impossible to establish when he was working in any of the charged periods or attempt to establish any kind of alibi.

75 The Crown submitted that rulings as to admissibility of evidence and directions about forensic disadvantage were capable of rendering a fair trial possible.

76 The Crown submitted that unavailability of a potential witness is a common occurrence. In relation to the complainants' mother, the Crown contended that her evidence would mostly be limited to background matters. It was not alleged that she was a witness to any of the offences or was present in the home when the abuse took place. According to the Crown, any prejudice could be alleviated by directions and the exclusion of the alleged complaint evidence.

77 The Crown sought to distinguish FJL on the basis that the proximity of the bedroom of the accused's parents to the bedroom in which the alleged offending conduct took place meant that their death resulted in the accused being deprived of the opportunity to rely on evidence going to the fact in issue, namely, whether the offending conduct occurred. In the present case, by contrast, since it was not suggested that the mother was at home when any of the offending conduct took place, her evidence could not go only to surrounding circumstances.

78 In relation to the neighbour, the Crown submitted that a forensic disadvantage direction would reduce any prejudice. This was said to be so because it was not alleged that the neighbour witnessed any abuse, or that a complaint was made to her; the female complainant could be cross-examined about failing to disclose the alleged abuse to the neighbour; and it was unlikely that the neighbour would have any memory of such a minor incident in any event.

79 The Crown accepted that the delay was significant, but submitted that it was not such that a fair trial is not possible with appropriate directions. It also submitted that in cases involving historical sex abuse it was rare to have specific dates. Allegations often span periods of years and any prejudice arising from the lack of specificity in relation to dates can be addressed by appropriate directions.

80 According to the Crown, it was relevant that the complainants were young children who had an unstable upbringing; that the female complainant was now aged 44 years and suffering from chronic post-traumatic stress disorder, with features of a major depressive disorder; and that the child sex offences were most serious.

81 In relation to the inability to explore whether any medical examination of the female complainant took place as a result of the incident the subject of charges 5 and 6, the Crown submitted that that prejudice was not of great consequence. This was said to be because the female complainant did not say that she was seen by a doctor or that she complained to anyone about the scratch to her face. A forensic disadvantage direction would cure any prejudice.

82 In relation to the applicant's evidence that the female complainant was medically examined after returning from the overseas trip, the Crown submitted that, as the judge excluded all evidence about the alleged rape, it could not be said there was any prejudice about that incident.

83 The Crown submitted that there was no significant prejudice arising from the fact that the applicant could not rely on contemporaneous medical evidence of his hypogonadotropic hypogonadism condition. The applicant could still make the argument about impotence, possibly with supporting expert evidence. Again, any prejudice could be dealt with by a forensic disadvantage direction.

84 In our view, it was reasonably open to the judge to decide to refuse a stay. At this stage of the proceeding, when not all evidentiary issues have been resolved, it was well open to his Honour to conclude that any unfairness to the applicant, arising from the matters upon which he relied, could be overcome by evidentiary rulings and directions to the jury. Moreover, as we will explain below, the application for a stay was, in the circumstances of this case, premature.

85 The incidents the subject of charges 4 and 7 do not involve any person other than the female complainant and the applicant. The incident the subject of charge 3 only involves the male complainant and the applicant. The incident the subject of charges 1 and 2 involves both complainants and the applicant.

86 In relation to these charges, any unfairness to the applicant based on delay and the absence of the complainants' mother is of a general nature which is common to proceedings involving allegations of historical child sexual offences. The nature of any evidence that the mother may have been able to give about these charges is speculative. In this regard, we note that there was no specific reliance on the potential evidence by the mother about the female complainant's virginity in relation to the alleged digital penetration that forms part of charge 4. We will discuss such evidence below in the context of charges 5 and 6.

87 There is no evidentiary foundation for the applicant's submission that if the mother had been alive, she may have given evidence about her hours of work which might have established that she was at home at the time of the alleged offending. The evidence is to the effect that the mother worked as a nurse through an agency, rather than having a permanent position at any particular medical facility. It is therefore entirely plausible that, from time to time, she worked night shift. Importantly, in his record of interview, the applicant did not deny that the mother left the complainants home alone with him. On the contrary, he said, she was 'working as [a] nurse on ... call'.

88 As for the employment and school records, it became apparent during oral argument that neither party had made enquiries about the availability of such records. Of course, the applicant is presumed to be innocent and is not obliged to conduct investigations to establish his innocence. Self-evidently, however, where a stay application is partly based on the absence of particular evidence, the force of that submission is weakened when the applicant has not made enquiries to ascertain whether that evidence exists or, more pertinently, has not requested the prosecution to make those enquiries. This is an aspect of the premature nature of the application for a stay, to which further reference will be made below.

89 As charges 1, 2, 3, 4 and 7 do not involve allegations of penile/vaginal penetration or the applicant's erect penis being exposed, the lack of opportunity of the applicant to obtain contemporaneous medical evidence about his hypergonadotropic hypogonadism condition is not relevant to them.

90 Charges 5, 6, 8 and 9 are in a different category to the other charges because they involve allegations of penile/vaginal penetration or the applicant's erect penis being exposed. Accordingly, any evidence about whether the applicant was capable of achieving an erection at that time or whether the female complainant was then a virgin would go to a fact in issue. The complainants' mother was capable of giving evidence on both matters.

91 In relation to the virginity issue, the applicant stated in his record of interview that, following the overseas trip, he 'pushed' the complainants' mother to obtain medical confirmation that the female complainant was a virgin. As the trip post-dated the incident the subject of charges 5 and 6, evidence by the mother that she arranged for the female complainant to be examined by a doctor and that the doctor advised that she was a virgin had the potential to exculpate the applicant in respect of those charges. Such evidence by the mother would not necessarily have been inadmissible hearsay if the doctor was not available to give evidence.[35]

92 It was common ground that evidence that the female complainant was a virgin at a time subsequent to the incident the subject of charges 5 and 6 would be highly probative as to a fact in issue in relation to those charges. If the mother had been the only source of such evidence, her death may well have been sufficient to create unacceptable unfairness in relation to those charges. However, the mother is not the only potential source of such evidence. The other sources are the doctor who examined the female complainant and the 'lady' who, according to the applicant's record of interview, was involved in the medical examination and the reporting back to the applicant that the female complainant was a virgin.

93 It became apparent during oral argument that neither party has made any enquiries in relation to the identity and availability of the doctor who is said to have examined the female complainant or the 'lady'. As the applicant has asserted that the female complainant was medically examined shortly after they returned to Australia, the timing of any such examination is capable of being narrowed down by reference to passports and other records. It is therefore open to the applicant to request the prosecution to make enquiries as to whether the complainants' family saw a particular doctor at that time and to ascertain whether any such doctor or his or her medical records are available.

94 As for the 'lady', there is a distinct possibility that she is the friend of the complainants' mother who introduced her to the applicant.[36] The evidence suggests that she remained a friend of the family during the children's upbringing and that both the female complainant and the applicant maintained contact with her. In any event, it became apparent during oral argument that neither party had made enquiries about the identity of the 'lady' or her availability to give evidence. It is open to the applicant to request the prosecution to make those enquiries.

95 The absence of enquiries to establish whether the forensic disadvantage resulting from the death of the complainants' mother can be sufficiently ameliorated by other evidence means that, insofar as it relates to charges 5 and 6, the application for a stay is premature. This is much to be regretted. We will discuss this issue further at [107]-[111] below.

96 We are not satisfied that the loss of opportunity for the applicant to obtain contemporaneous medical evidence about his ability to achieve an erection at the time of the alleged offending is sufficient, by itself or in combination with the other matters on which he has relied, to warrant a permanent stay.

97 In the record of interview, when the applicant was informed of the female complainant's allegation that he had penile/vaginal intercourse with her, he did not assert that this would have been physically impossible. On the contrary, as stated at [39] above, he made a comment which suggested that he did not need to have sex with the female complainant because he was having sex with her mother.

98 Further, the medical evidence discussed at [37]-[38] above is inconclusive about whether the medical condition from which the applicant now suffers was present at the time of the alleged offending and, if it was, whether it would have affected his ability to achieve an erection. There is also the evidence of the male complainant discussed at [40]-[41] above about his observations regarding sexual activity between his mother and the applicant, and between the applicant and another woman.

99 The inability of the applicant to rely on any contemporaneous medical evidence concerning whether he suffered from erectile dysfunction at the time of the alleged offending would not prevent him from adducing evidence to this effect. He could also seek to undermine evidence to the contrary by, for example, cross-examining the male complainant. The taking of such steps and the giving of a forensic disadvantage direction by the judge are capable of sufficiently overcoming any unfairness caused by the applicant's inability to rely on contemporaneous medical evidence or evidence by the complainant's mother.

100 Finally, in relation to charges 5 and 6, we note that although the female complainant's evidence is that the applicant told her to say to her mother that she had accidentally hurt herself with the vacuum cleaner, the evidence is silent as to whether she actually made that statement to her mother. Similarly, the evidence is silent as to whether the female complainant told her mother why she had wet her pants at school. It follows that the nature of any evidence that the mother may have been able to give on these matters is unclear.

101 In summary, it was well open to the judge to conclude that the combination of factors upon which the applicant relied did not warrant a permanent stay of charges 5 and 6.

102 We now deal with charges 8 and 9.[37] In relation to those charges, the applicant relied principally on the deaths of the complainants' mother and the neighbour.

103 The applicant described the mother as having a 'centrality' to the narrative relating to charges 8 and 9. It is true that, on the female complainant's evidence, the mother had a significant role in the aftermath of the incident the subject of charges 8 and 9. This was because she was told about the incident and reacted to it by forcing the applicant to leave the family home. A couple of days after, the mother requested the female complainant to telephone the applicant to tell him that she wanted 'to take him to court'.

104 As pointed out earlier, however, it is not said that the mother either witnessed or - as was the case with the accused's parents in FJL - was in a position to witness the incident. We also note that the evidence of the male complainant summarised at [40] above is inconsistent with the mother having previously been aware of any sexual abuse of the female complainant by the applicant. In any event, any prejudice that may have arisen from the female complainant's evidence about the discussion she had with her mother has been sufficiently overcome by the judge's decision to exclude th[38] evidence.38

105 We are not satisfied that the loss of opportunity to adduce evidence from the neighbour is productive of any material unfairness. The female complainant's evidence is to the effect that, when the neighbour came to the security door of her flat, the female complainant frantically requested the neighbour to help her and to let her in the flat, and that when the applicant arrived, she left with him after he said that she had burnt a cake. It is pure speculation as to whether, if the neighbour were alive, she would remember an incident of the sort described by the female complainant. If she did, and her evidence were admitted, it would be prejudicial to the applicant. If she did not, any adverse impact on the credibility of the female complainant is likely to be limited. It follows that we are not satisfied that the death of the neighbour is productive of any forensic disadvantage which is incapable of being overcome by a forensic disadvantage direction.

106 For the above reasons, it was reasonably open to the judge to refuse a stay. Accordingly, Ground 1 is not made out.

107 Before turning to Ground 2, we wish to make some general observations about the appropriate timing of an application for a permanent stay of a criminal proceeding.

108 As noted earlier, a permanent stay of criminal charges will be granted only in extreme cases and 'the making of such an order on the basis of delay alone will accordingly be very rare'. Such an application should not be brought unless and until all available avenues of enquiry have been exhausted.[39] That must be done so that it is clear what evidence is available and what evidence is not available, so that the court may make an informed decision on whether the test for a stay is satisfied. A premature application for a stay, made at a time when the evidence is not settled, wastes precious judicial resources and, as the present case has demonstrated, may be counter-productive.

109 As we have discussed already, the judge has decided to exclude some of the applicant's evidence in her VARE.[40] An application for the exclusion of evidence of complaints made by the female complainant to her husband and to a school friend has not yet been determined. During the course of oral argument, in an exchange with the Bench, the Crown stated that, due to its prejudicial nature, the prosecution would not seek to adduce evidence by the complainants that the applicant was violent towards them and their mother. It is surprising that the applicant has not previously taken the initiative to seek an undertaking to this effect.

110 We also note that, in his Ruling, the judge referred to evidence of uncharged acts identified in the Prosecution Opening and stated that '[t]he precise parameters of this evidence need to be determined ... through discussion between the parties or further submission and argument'.[41] Further, in the Defence Response to Summary of Prosecution Opening dated 27 April 2015, the applicant foreshadowed a challenge to the admissibility of the evidence of the male complainant and of his friend referred to at [30]-[31] above. To date, no application has been made to exclude that evidence.

111 It is clear that there has been inadequate communication between the parties about the evidentiary parameters of this case. As a result, the evidence to be led at trial remains unsettled. That is an unsatisfactory state of affairs in the context of an application for a permanent stay and an application for leave to appeal against an interlocutory decision refusing such a stay. It is essential that there be effective dialogue between the parties so that the applicant is fully aware of the evidence to be led by the prosecution. It is only then that the applicant will be in a position to make an informed decision about whether to request the prosecution to make any enquiries about the availability of potentially exculpatory evidence of the type we have already discussed and whether to seek any further rulings for the exclusion of any part of the prosecution evidence.

GROUND 2: REFUSAL TO SEVER CHARGES FROM THE INDICTMENT

The learned judge erred in the exercise of his discretion under s 193(1) and 3(a) of the [CPA] in refusing to sever charges 2 and 3 from Indictment F11794451.

Relevant statutory provisions and legal principles

113 The CPA allows an indictment to contain charges for related offences, which are offences that are founded on the same facts or form, or are part of, a series of offences of the same or a similar character.[42]

114 Sections 193 and 194 of the CPA relevantly provide as follows:

193 Order for separate trial

(1) If an indictment contains more than one charge, the court may order that any one or more of the charges be tried separately.

...

(3) The court may make an order under subsection (1) ... if the court considers that -

(a) the case of an accused may be prejudiced because the accused is charged with more than one offence in the same indictment; or

...

(c) for any other reason it is appropriate to do so.

(4) The court may make an order under subsection (1) ... before trial or during a trial.

...

...

(2) Despite section 193 and any rule of law to the contrary (other than the Charter of Human Rights and Responsibilities), if in accordance with this Act 2 or more charges for sexual offences are joined in the same indictment, it is presumed that those charges are to be tried together.

(3) The presumption created by subsection (2) is not rebutted merely because evidence on one charge is inadmissible on another charge.

115 In R v TJB,[43] Callaway JA (with whom Phillips CJ and Buchanan JA agreed) considered the predecessors to ss 193 and 194 of the CPA and set out the following principles to guide the exercise of the discretion to sever charges:

1. A presentment should always be severed where that is both desirable and practicable in order to ensure a fair trial. It is for defence counsel to persuade the judge that that is so. In that respect sexual offences are no different from other offences.
2. One aspect of a fair trial is the taking of reasonable steps to prevent a jury from misusing evidence. That is not limited to propensity evidence and again is not peculiar to trials of sexual offences ...
3. It is usually to be assumed that the jury will comply with any directions they are given by the judge. A fair-minded lay observer takes that very factor into account in considering whether a trial is fair ...
4. There are nevertheless cases where the risk of prejudice is unacceptable. It will often be found that that is so in the case of offences of an unnatural character or offences that arouse strong emotions or excite revulsion.
5. There is also a greater risk that a direction will be ineffectual if evidence in relation to one complainant is probative in relation to another but either the Crown does not rely on it for that purpose or the judge rules that it is inadmissible because of prejudice.[44]

116 Although Callaway JA stated that some sexual offences, particularly those of an 'unnatural or repellent character like offences against young children' are peculiarly likely to arouse prejudice,[45] in Baker (a Pseudonym) v The Queen,[46] this Court rejected a submission that TJB is authority for a general proposition that there is an unacceptable risk of prejudice in conducting a joint trial involving more than one complainant in respect of allegations of sexual offences against young children.[47]

117 In Baker, this Court said that the law is as stated in GBF v The Queen[48] as follows:

Section 193 of the Criminal Procedure Act 2009, like its predecessor, s 372 of the Crimes Act 1958, empowers the court to order that one or more charges on an indictment be tried separately. In the same way, however, that ss 372(3AA) and 372(3AB) of the 1958 Act provided, s 194 of the new Act provides that, if two or more charges for sexual offences are joined in the same indictment, it is presumed that those charges are to be tried together and the presumption is not rebutted merely because evidence of one charge is inadmissible on another charge. As is explained in R v TJB, that is so because it is usually assumed that the jury will comply with any direction they are given by the judge. Nevertheless, there are cases where the risk of prejudice is unacceptable. ...

Ordinarily, in a multi-complainant sexual offence case, the jury can be directed either that they may take the evidence given by one complainant into account as tendency evidence in determining whether the Crown has established the offences alleged to have been committed against another complainant, or that they are to put the evidence of one complainant completely out of mind as they consider whether the Crown has established guilt in relation to the offences alleged to have been committed against the other complainant. In such cases, the mere fact that there are two complainants is not ordinarily regarded as sufficient reason to sever the indictment.[49]

118 The Court in GBF said that the discretion conferred by s 194 should be reviewed by an appellate court 'only on the ordinary principles that apply to discretionary judgments'.[50]

119 The judge referred to Callaway JA's judgment in TJB and to the fact that there are some cases where the risk of prejudice arising from charges being tried together is unacceptable, but considered that 'this is not such a case'.[51]

120 The judge had regard to the asserted prejudice in the factual context of the case, particularly the risks: that the jury might not be able to consider separately the evidence of the complainants; that the jury might misuse the evidence of the female complainant to strengthen what was said to be the weaknesses in the male complainant's evidence; and that the jury might resort to impermissible tendency reasoning. The judge also had regard to features of the offending which created a risk that the jury might find it difficult to understand why they were being asked to disregard the evidence of the female complainant when considering the male complainant's case and vice versa.[52] These included that: the alleged offending arose from an allegation of oral sex with respect to charges 1 and 2, and 'what might be viewed as a prelude to oral sex with respect to charge 3'; the complainants were siblings who at the time were living under the same roof as the applicant; and the complainants were similar in age.[53]

121 However, the judge considered that there were significant differences between the two, including the gender of each complainant and the circumstances surrounding the incidents of alleged offending, and that the jury would properly abide by his directions to consider each charge separately.[54] The judge concluded as follows:

I am of the view that appropriate direction can be given to remove any prejudice. Whilst not determinative of the application to sever I note that there is an intermingling of the evidence of each of the complainants. In the trial [regarding the female complainant, the male complainant] would be called to give evidence of his observations of what is said to have occurred after Charges 8 and 9.

In the trial [regarding the male complainant, the female complainant] would be called to give evidence of her observations with respect to Charge 2. [The male complainant] may give evidence of his observations to rebut any defence that due to the impotency or erectile dysfunction of the [applicant], he was incapable of or it is improbable that the charged conduct occurred. If Charges 2 and 3 were severed it would involve a truncated version having to be given, with respect to the incident that grounds Charges 1 and 2 in the respective trials of each of [the complainants].[55]

122 The applicant submitted that although the prosecution does not rely on tendency evidence, cross-admissibility arises in relation to charges 1 and 2.

123 The applicant contended that the evidence of the male complainant is 'non-existent' in relation to charge 2 and 'very weak' in relation to charge 3. According to the applicant, no jury, properly instructed, could convict the applicant of those charges. The applicant submitted that there is, however, a danger that a jury may misuse the evidence of the female complainant to 'fill in the gaps', or strengthen the weaknesses, in the male complainant's account. Despite any warning a jury may receive, the applicant submitted 'it would be conceptually impossible for the jury to put out of their mind all the detailed evidence of [the female complainant] as to what she alleges the [applicant] did to her'. According to the applicant, there is also a chance that a jury may find the female complainant's credibility is enhanced by the evidence of the male complainant.

124 The applicant submitted that the danger is that a jury may conclude that the applicant is the sort of person who commits sexual offences against children, that he has a tendency to do so, and misuse the evidence of both complainants to 'buttress the credibility' of each. According to the applicant, once the evidence is heard, it cannot be forgotten. As a result, so it was said, there is a real chance of prejudice to the applicant resulting in an unfair trial and accordingly, charges 2 and 3 should be severed from the indictment.

125 In the course of oral submissions, in response to questions from the Bench, the applicant conceded that the hearing of charges 1 and 2 in the same trial could possibly be to his advantage. This was because the male complainant's inability to recall the incident would not only make it difficult for the prosecution to succeed in relation to charge 2 but also cast doubt on the reliability of the female complainant's evidence in relation to charge 1.

126 The Crown submitted that the charges are linked in time and place and involve similar acts. It was said that a separate hearing of charges 1 and 2 would be 'an affront to common sense', would involve the female complainant having to give evidence twice and would lead to unnecessary expense. The Crown contended that the fact that the male complainant does not remember the incident, and the prosecution relies on the evidence of the female complainant, is not a sufficient basis for severance. According to the Crown, a jury could accept the evidence of the female complainant with respect to these charges, especially given that both complainants were children at the time.

127 The Crown submitted that it is presumed that a jury in a joint trial would follow directions against tendency reasoning and directions to consider each charge separately.

128 In relation to charge 3, the Crown submitted that a jury could infer the relevant act from all the evidence despite the fact that the male complainant did not see the applicant's penis. According to the Crown, any danger of misuse of the evidence can be eliminated by separate consideration and anti-tendency directions.

129 In our respectful opinion, it was not only open to the judge to refuse to sever charges 2 and 3 from the indictment, but he was right to do so. In the case of charges 1 and 2, the applicant properly conceded that a hearing of those charges in the same trial may possibly work to his advantage. In relation to charge 3, the incident described by the male complainant is so different from the alleged offending against the female complainant that it is unlikely that a jury would impermissibly reason on the basis of her evidence that the applicant is the sort of person who would engage in the type of conduct the subject of charge 3.

130 In any event, we are satisfied that any potential prejudice to the applicant can be sufficiently overcome by separate consideration and anti-propensity directions. Such directions are routinely given in sexual offence cases involving multiple complainants or multiple charges and juries are capable of understanding them and complying with them.

131 In the course of oral argument, the Bench raised with the Crown whether the female complainant's evidence in support of charges 1 and 2 - that the applicant told the complainants to take turns licking his penis - was capable of establishing the physical element of the offence of indecent assault, as distinct from the offence of gross indecency.[56] The Crown undertook to consider this issue and, if necessary, amend the indictment to add alternative charges of gross indecency. In these circumstances, it is not necessary for us to say anything further on the matter.

132 Section 297(1) of the CPA provides that this Court may grant leave to appeal against an interlocutory decision only if it is satisfied that it is in the interests of justice to do so. As we have concluded that it was open to the judge to dismiss the stay and severance applications, we are not satisfied that it is in the interests of justice to grant leave to appeal. Accordingly, the application will be refused.

133 I have had the benefit of considering the reasons for judgment of Maxwell P and Kyrou JA. I agree that the application for leave to appeal should be refused. Subject to the following remarks, I agree with their Honours' reasons.

134 The power to order a permanent stay is discretionary.[57] It follows that the

issues joined on applications of this nature sometimes concern matters about which reasonable minds can differ.

135 This, in some respects, is such a case. While it was open to the judge to refuse to grant a permanent stay on all charges, I think it was also open to him to grant the application in respect of Charges 5 and 6 (which allege penile-vaginal penetration) and Charges 8 and 9 (the incident concerning the neighbour).

136 In addition to all of the more common disadvantages experienced by an accused when facing a trial many years after the alleged events, the deaths of the complainants' mother and the family's neighbour each present a specific evidentiary prejudice that, arguably, would make the trial of those particular charges unfair. Granted, this is not a case quite like FJL, where the deaths of the accused's parents meant that the accused was deprived of the opportunity of relying on evidence going more directly to whether a particular charged act occurred. Rather, in the present case, the complainants' mother and the neighbour are not said to have witnessed, or to have been in a position to witness, directly or indirectly, any of the charged acts being committed.

137 But the mother is, arguably, central to the applicant's claim about inquiries into the female complainant's virginity at a time after the sexual penetration alleged in Charges 5 and 6. Plainly, if it is reasonably possible that the female complainant was found by a medical practitioner to be a virgin at that later time - which is what the applicant, in his police interview, asserts the mother told him - that would tend to cast doubt on the allegation of penile-vaginal penetration.

138 Maxwell P and Kyrou JA have concluded that, in the absence of inquiries as to the identity and availability of the medical practitioner who conducted the medical examination or the 'lady' said to have been involved in the discussion about the issue of virginity, the application for a permanent stay of Charges 5 and 6 was premature. I accept that, in some circumstances, an application for a permanent stay might be weakened by a failure to exhaust all avenues of inquiry on matters that could impact on the question whether a trial can be conducted fairly.

139 But I would not go so far as to say that this application, in respect of Charges 5 and 6, was necessarily premature.[58] While it was the applicant's application for a permanent stay, and while such an order will be made only exceptionally, it is the Crown who carries the onus of proof at trial. In the present case, the Crown had not sought to make any such inquiries, despite knowing of the applicant's claim about the mother's account of the medical examination in his record of interview. While I think it would have been open for the judge to defer the hearing of the application until further inquiries on this topic had been made by the Crown, his Honour did not do so. Further, the course he adopted was open on the material he had. Thus, I think it is proper to consider his decision based on that material.

140 Absent what (the applicant claims) would have been the mother's evidence about this issue, it is reasonable to assume that, if at trial the female complainant denies the allegation of the medical examination or its alleged result, there is a high chance that the applicant's claim will fall on deaf ears.[59] Thus, it seems to me that, on the evidence before the judge, given the importance of what is said to be the mother's account of the medical examination, it would have been open to his Honour to conclude that the absence of the mother, when combined with all of the other difficulties that come with such a long delay, tipped the balance in favour of a conclusion as to incurable prejudice in respect of the applicant's defence of Charges 5 and 6.

141 While the judge considered the applicant's assertion that the mother told him of the doctor's opinion about the female complainant's virginity, he remarked that it 'appears to be based on second-hand hearsay'.[60] As Maxwell P and Kyrou JA point out, however, such evidence by the mother would not necessarily have been inadmissible hearsay if the doctor was unavailable. Nor, as I read his reasons, did the judge specifically address the possible effect of the absence of the mother on the applicant's defence of Charges 5 and 6. That said, his Honour did say that he considered 'all the claimed aspects of prejudice, both collectively and individually, in reaching [his] determination'.[61] Further, there is no complaint of specific error in his consideration of this or any other aspect of the stay application. Rather, the complaint is that it was simply not open to decline to order a permanent stay.

142 As I have said, I do not agree. Directions as to forensic disadvantage - as well as the exclusion of evidence that cannot be tested adequately - can be effective tools in redressing unfairness created by long delay, including the absence of a material witness. His Honour is a judge with considerable experience in the criminal law. In my view, the matter was sufficiently finely balanced to allow him to conclude, as he did, that directions as to forensic disadvantage would be sufficient to ameliorate any prejudice in the applicant's defence of any of the charges arising from the mother's absence, including Charges 5 and 6.

143 I turn now to Charges 8 and 9. I also think, albeit with less conviction, that it was open to the judge to conclude that the death of the neighbour, when combined with the other prejudicial effects of delay, amounted to incurable prejudice in respect of those charges.

144 While the neighbour is not said to have witnessed the charged acts, her presence is arguably integral to the female complainant's allegations on these charges. For the complainant alleges that, immediately after the charged acts occurred, she rushed to the neighbour's home, knocked on her door and asked for help. She spoke to the neighbour through the screen door, who would not open the door. The applicant, it is alleged, sought to explain the complainant's apparent distress to the neighbour by saying she had burnt a cake. It is also alleged that he then dragged her back to the house. When these allegations were put to him by police, the applicant denied that any such events occurred.

145 In my view, it is arguable that the alleged interaction with the neighbour is so central to the female complainant's account of the charged allegations that the neighbour's absence is the equivalent of the absence of the accused's parents in FJL.

146 Maxwell P and Kyrou JA have concluded that it is speculation as to what the neighbour would have said if she were alive. The judge made the same point. They are right, of course. And I do think that that fact weakens the application. Indeed, for all we know, it is possible that the neighbour's account would have been unhelpful to the applicant's cause.

147 But, as I understand it, it was not known what the accused's parents in FJL would have been able to say if they were alive, and yet a permanent stay was made (on the one charge) and upheld on an interlocutory appeal in that case. Further, while it might be crucial in some instances, I do not think that in every case it is necessary for an accused to be able to assert what an absent witness would say in order that the witness's absence be significant in determining whether a stay should be granted. In my view, it is still of importance that the alleged witness to a series of events intimately bound up with the allegations in Charges 8 and 9 is not available in circumstances where the applicant has told police that no such events occurred. While it is not known what the neighbour would have said about the complainant's allegations, given the applicant's account, there is an evidentiary basis for him to assert that he is at least deprived of the possibility of having the jury hear that the neighbour denies the occurrence of any such event or that she cannot remember it. In my view, to conclude otherwise would tend to undermine the presumption of innocence. Further, and in any event, it is arguable that the absence of the witness leaves such a gap in confirmation of the complainant's narrative of the charged events that, when combined with the other effects of delay, there is an uncomfortable uncertainty in proceeding to trial on the charges directly linked to that narrative.

148 But, again, this is the type of matter on which reasonable minds might differ. As I have said, I think it was open to the judge to conclude, as he did, that directions as to forensic disadvantage would be sufficient to ameliorate any prejudice arising from the neighbour's absence.

149 I otherwise agree with the reasons of Maxwell P and Kyrou JA on Ground 1.

150 I turn now to the judge's refusal of the application for severance.

151 Applications for severance, like applications for permanent stays, sometimes raise matters about which reasonable minds can differ. While it was reasonably open to the judge to refuse the application for severance of Charges 2 and 3 from the other charges on the indictment, again, in my view, a decision to the contrary was also open.

152 I accept, as Maxwell P and Kyrou JA point out and as counsel conceded, that there is a possibility that the joinder of Charges 1 and 2 could work to the applicant's advantage. However, counsel evidently takes the view that any such advantage is more than outweighed by the disadvantage of having Charges 2 and 3 tried with the other charges.

153 Counsel's particular concern about Charge 2 is that, despite the male complainant's expected evidence - that he does not remember the incidents the subject of Charges 1 and 2 - and despite the usual warnings and directions, there is still an unacceptable risk that a jury would convict on the female complainant's evidence only because, in the minds of the jury, that evidence is bolstered impermissibly, and the applicant's character is correspondingly blackened, by hearing her allegations of multiple other offences committed by the applicant.

154 I also accept counsel's submission that the evidence in support of Charge 3 appears to be weak - in the sense that, even if accepted in its entirety, for a conviction, an adverse inference still must be drawn when other inferences might be open. In those circumstances, there is a reasonable concern that, despite strong directions, a jury might be tempted to 'fill in the gaps' by impermissible reasoning as a result of hearing the evidence in support of the other charges.

155 In light of the foregoing and the other considerations urged by counsel, I accept that a judge, acting reasonably, might have concluded that, despite the availability of directions and warnings, the risk of misuse of the evidence of the female complainant in considering Charges 2 and 3 was so high that there ought to be severance of those charges from the others.

156 However, as I say, I also accept that it was open to the judge to be satisfied that the usual directions and warnings would be followed by a jury, such that severance was not necessary. On a daily basis, juries in trials for sexual offences in the County Court are given, and expected to follow, directions of this type. In so far as experience can inform these things, the patterns of verdicts in trials on multiple charges concerning multiple complainants tend to suggest that, in the main, juries are very discerning and do in fact follow such directions.

157 I otherwise agree with the reasons of Maxwell P and Kyrou JA on Ground 2.

Charges 1 and 2: Indecent assault or gross indecency

158 Finally, I turn to the question whether the Crown have charged the wrong offences in Charges 1 and 2.

159 In my view, even when put at its highest, the female complainant's account in her VARE in support of Charges 1 and 2 is not capable of amounting to offences of indecent assault, for there is no allegation of an assault by the applicant. On the other hand, that account would support charges of gross indecency in respect of each complainant.[62]

160 It surprises me that, in circumstances where the Crown has laid Charge 9 (gross indecency) as an alternative to Charge 8 (indecent assault) precisely because of the same type of concern, the Crown has not, at the very least, laid charges of gross indecency as alternatives to Charges 1 and 2. But there it is.

161 As the evidence stands, those charges should not be on the indictment, for they are foredoomed to fail. Had the Crown not undertaken to consider this issue following the hearing of the application in this Court and, if thought necessary, recast the indictment, I would have proposed orders granting a permanent stay in respect of Charges 1 and 2 on the basis that those charges are foredoomed to fail. That counsel for the applicant did not object to the Crown's proposed course also influenced my decision to refrain from proposing such orders.

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] The applicant also sought the exclusion of evidence by a school friend of the female complainant and by the female complainant's husband concerning complaints that she made to them about sexual abuse by the applicant. That evidence is discussed briefly at [42] and [109] below.

[3] [1936] HCA 40; (1936) 55 CLR 499.

[4] Cf Clarkson v The Queen (2011) 32 VR 361, 384 [89]; National Builders Group IP Holdings Pty Ltd v ACN 092 675 165 Pty Ltd (in liq) [2015] VSCA 260 [45].

[5] See n 2 above and [109] below relating to the complaint evidence of the school friend and husband.

[6] Hermanus (a Pseudonym) v The Queen (2015) 44 VR 335, 341-2 [39] ('Hermanus') (citations omitted); Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, 31, 58-61, 76 ('Jago').

[7] R v FJL (2014) 41 VR 572, 580 [38] ('FJL').

[8] [1989] HCA 46; (1989) 168 CLR 23.

[9] Jago [1989] HCA 46; (1989) 168 CLR 23, 33-34 (citations omitted). See also Jago [1989] HCA 46; (1989) 168 CLR 23, 58-61.

[10] (2015) 44 VR 335.

[11] (2014) 41 VR 572.

[12] Hermanus (2015) 44 VR 335, 342-3 [40] (citations omitted).

[13] Hermanus (2015) 44 VR 335, 343 [41] citing CT v The Queen [2014] NZSC 155 [32].

[14] Hermanus (2015) 44 VR 335, 344 [43].

[15] Hermanus (2015) 44 VR 335, 344 [43].

[16] Hermanus (2015) 44 VR 335, 344 [44]. This was said to underpin the legislative requirements for the giving of forensic disadvantage warnings and the reasoning in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 91.

[17] Hermanus (2015) 44 VR 335, 344-5 [45]-[48].

[18] FJL (2014) 41 VR 572, 580 [38].

[19] (2015) 46 VR 382 ('Bauer').

[20] Bauer (2015) 46 VR 382, 403 [100].

[21] Bauer (2015) 46 VR 382, 403 [101].

[22] Bauer (2015) 46 VR 382, 404 [104].

[23] He also referred to PG v The Queen [2010] VSCA 289.

[24] See [46]-[49] above.

[31] Ruling 112-13. See [39]-[41] above.

[33] [1936] HCA 40; (1936) 55 CLR 499.

[34] [1989] HCA 46; (1989) 168 CLR 23.

[35] See Evidence Act s 65(2), (8).

[36] See [13] above.

[37] The analysis at [96]-[99] above concerning evidence of the applicant's erectile dysfunction also applies to charges 8 and 9.

[38] See [29] above.

[39] Jago [1989] HCA 46; (1989) 168 CLR 23, 31, 58-61, 76.

[40] See [29], [33] above.

[42] CPA s 3, sch 1 cl 5(1).

[43] [1998] 4 VR 621 ('TJB').

[44] TJB [1998] 4 VR 621, 630-1 (citations omitted) (emphasis in original).

[45] TJB [1998] 4 VR 621, 629.

[46] [2015] VSCA 323 ('Baker').

[47] Baker [2015] VSCA 323 [69].

[48] GBF v The Queen [2010] VSCA 135 ('GBF'); Baker [2015] VSCA 323 [69].

[49] GBF [2010] VSCA 135 [51]-[52] (citations omitted).

[50] GBF [2010] VSCA 135 [55].

[56] See Fairclough v Whipp (1951) 35 Cr App R 138; DPP v Rogers [1953] 1 WLR 1017; Papazoglou v The Queen (2010) 28 VR 644, 659-60 [63]-[73].

[57] See, eg, Jones (a pseudonym) v The Queen [2017] VSCA 111 [9].

[58] I do, however, agree with Maxwell P and Kyrou JA that the application with respect to the other charges (other than the application concerning Charges 8 and 9 as well - as to which, see below) was premature in so far as the evidentiary parameters of the case had not yet been determined fully. See, eg, Jones (a pseudonym) v The Queen [2017] VSCA 111 [82]-[83], where this Court endorsed the trial judge's view that 'the evidence was in a state of flux and the application [for a permanent stay] was premature.'

[59] Worse still for the applicant, absent the mother's confirmation of his assertion, there is a risk that all of this talk about having the virginity of the child investigated will be counter-productive, no matter what he claims to have been the results. That said, while it would be a matter of forensic choice and instructions, in the absence of a permanent stay, the latter concern could be offset somewhat by exclusion of those parts of the interview where the assertion is made and if a decision were made simply not to pursue the point at trial.

[62] See Fairclough v Whipp (1951) 35 Cr App R 138; DPP v Rogers [1953] 1 WLR 1017; Papazoglou v The Queen (2010) 28 VR 644, 659-60 [63]-[73].