Clark (a Pseudonym) v The Queen [2016] VSCA 96

1 On 21 April 2016, this Court heard and determined an application, pursuant to s 295 of the Criminal Procedure Act 2009, for leave to appeal against the refusal of a County Court judge to grant a permanent stay of a trial in what were surely unique circumstances. The applicant had already stood trial on the same charges on three previous occasions, and on each of those occasions the jury had been unable to agree. This was to be a fourth trial, in itself an extraordinary occurrence. Moreover, for reasons that will be explained, this fourth trial was to be conducted on the basis of precisely the same evidence as had been led in each previous trial.

2 We granted leave to appeal, allowed the appeal instanter, and set aside the decision below. We ordered that the matter be remitted to the County Court for rehearing, and said that we would publish our reasons at a later date. These are those reasons.

3 Never before, so far as we can tell, has the prosecution in any common law jurisdiction sought to try an accused for a fourth time after three previous trials where, on each occasion, the jury were unable to reach a verdict.[2]

4 Not surprisingly, the applicant argued before the trial judge that this attempt to try him a fourth time constituted an abuse of process. He submitted that to do so violated the requirement that the court's processes not be used in an oppressive and unjust manner.[3] He further submitted that a fourth trial would expose him to what might fairly be described as 'quadruple jeopardy'.

5 The judge rejected that submission and refused to grant a permanent stay. She did, however, grant a Certificate under s 295(3)(b) of the Criminal Procedure Act 2009, thereby signifying that, in her opinion, the question whether a permanent stay should be granted met the requirements of that section. Implicitly at least, that meant that she was satisfied that it was reasonably arguable that she had erred in refusing to grant the stay.

6 The applicant currently faces three charges of sexual penetration of a child under 16 (contrary to s 45(1) of the Crimes Act 1958) and two charges of sexual penetration of a '16 or 17 year old child' who was under his 'care, supervision or authority' (contrary to s 48(1) of that Act).

7 The offences were allegedly committed by the applicant against his step-daughter, [AA]. The offending conduct was said to have taken place at various times between July 2012 and August 2013.

8 The applicant was first tried on 19 March 2015. On 31 March 2015, the jury were discharged without verdict. The second trial commenced on 16 July 2015. On 27 July 2015, the second jury were discharged without verdict. The third trial began on 9 November 2015. On 16 November 2015, the third jury were discharged without verdict.

9 Each trial was conducted before the same judge who was listed to hear the fourth trial. As previously indicated, and as confirmed by the judge in her ruling rejecting the application for a permanent stay, the evidence led in each of the three trials had been exactly the same. At the first trial, the complainant gave her evidence by way of VARE, in accordance with s 368 of the Criminal Procedure Act 2009, and was cross-examined at a special hearing. Thereafter, she was not required to give evidence again. The VARE and her evidence at the special hearing were replayed at the second and third trials. A complaint witness also gave evidence by VARE at the first trial. He was cross-examined before the jury. But at the second and third trials his evidence, by agreement and consistently with s 232(1)(c) of the Criminal Procedure Act 2009, consisted of the VARE and a videorecording of the earlier cross-examination. At all three trials, the informant gave evidence. But it was essentially limited to putting in a record of interview in which the applicant denied the pertinent offending.

10 On the stay application, the judge was told that it was anticipated that the same evidence would be led in the fourth trial if that were permitted to proceed. In accordance with s 232 of the Criminal Procedure Act 2009, the Crown proposed simply to play to the jury an audio visual recording of the entire evidence led in the first trial, including that of the complainant, without calling any additional witnesses.

11 In the course of argument in this Court there was discussion about an odd and discriminatory feature of the Crown's intended course. We will refer to it when explaining why the judge erred in the conclusion which she reached.

12 In each trial, once it became apparent that the jury were unable to agree, they were given what is commonly termed a 'perseverance direction'.[4] They were also told, at the appropriate time, that they could return a majority verdict. This was to no avail.

The principles governing the grant of a permanent stay

13 These principles are well settled. The power to order a permanent stay derives from the inherent (or, in some cases, implied) power of a court, including the County Court, to protect the integrity of its processes where the administration of justice so requires. It is a remedy that is invoked in order to prevent an abuse of process.[5]

14 The concept of abuse of process extends to the use of the court's processes in a way that is inconsistent with two fundamental requirements arising in criminal proceedings. These are, first, that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that unless the court protects its ability to function in that way, its failure will lead to an erosion of public confidence. The court's processes will be seen as lending themselves to oppression and injustice.[6]

15 The continuation of proceedings that are unjustifiably and unfairly oppressive will, of itself, amount to an abuse of process.[7] Moreover, as is well understood, a prosecution can be stayed if it has been instituted and maintained for an improper purpose.[8]

16 In a criminal context, the term 'abuse of process' encompasses not only circumstances within the narrowest conception of that term (such as bringing a prosecution for an improper purpose, or maintaining one that is clearly foredoomed to fail), but also pursuing a criminal proceeding in a manner that is unfair, and gives rise to oppression.

17 It is only in an extreme case that a permanent stay of proceedings will be ordered.[9] Necessarily, such cases will be rare. It follows that an applicant for a permanent stay must discharge a heavy onus if a court is to be persuaded to grant that remedy.

18 In determining whether a permanent stay should be granted, a court must have regard to the substantial public interest in having those charged with serious criminal offences brought to trial. A stay of that kind is tantamount to an immunity from prosecution, and is not therefore lightly to be granted.

19 There is more to a court's decision as to whether a trial should proceed than fairness to the accused.[10] An applicant for a stay must establish that the continuation of the proceedings would, not merely could, involve unacceptable injustice or unfairness. It must be shown that the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to itself constitute an abuse of process.[11]

20 In support of the application for a permanent stay, the applicant contended that to allow a fourth trial to proceed in the present circumstances would be an abuse of process. Self-evidently, he submitted, it would be oppressive. If, somehow, a jury were to be persuaded to convict, the outcome could not possibly be regarded as just. Indeed, a conviction in such circumstances would tend to bring the administration of criminal justice into disrepute.

21 The fact that three juries had considered the evidence in this case, and had been unable to agree upon a verdict, even by a majority, meant that a conviction by a fourth jury would not reflect the views of a cross-section of the community but, rather, an accidental collection of individuals who had, on this occasion, arrived at an atypical result. The analogy was drawn with a deck of cards. In effect, it was submitted that, shuffled and dealt often enough, such cards would eventually produce a royal flush.

22 Moving from his statistical arguments, the applicant cited a number of authorities in support of a permanent stay. In particular, he relied upon the observations of the English Court of Appeal in R v Bell.[12]

23 The applicant also referred, in that regard, to the prosecutorial guidelines issued by prosecuting agencies throughout Australia. More particularly, he referred to the prosecution guidelines issued by the Commonwealth DPP[13] and the DPPs of New South Wales,[14] Queensland,[15] South Australia,[16] and Western Australia.[17] He noted that in all of them, it was stipulated that a second retrial, after two jury disagreements, should only be had in in rare, exceptional or special circumstances. The prosecution guidelines in New Zealand,[18] and in England and Wales[19] were to the same effect.

24 None of the guidelines spoke of a third retrial. Presumably, that was because it was thought inconceivable that this would ever occur.

25 As will be seen, the ruling rejecting the application for a permanent stay was somewhat sparse in its reasoning. Therefore, some reference to the argument before the judge may cast light upon why that application was rejected.

26 The judge emphasised, at one point in the course of argument, that it was a matter for the Director, in his discretion, whether any particular person should be indicted or not. Counsel accepted that proposition as self-evidently correct. He then made it abundantly clear that he was in no way seeking to review the exercise of the Director's discretion or his decision to conduct a fourth trial. Rather, he said, he was seeking to invoke the Court's own undisputed power to stay proceedings that would otherwise amount to an abuse of process.

27 That prompted the judge to ask counsel whether he was suggesting that, in some way, the Director was not fully aware that this would be a third retrial. She invited counsel to indicate whether, in his submission, the Director had failed to take that fact into account. Indeed, she went further. She asked counsel whether he had sought to persuade the Director not to proceed, as counsel had previously indicated he would. Counsel replied that he had not thus far done so, and went on to submit that whether he had personally met with the Director to press him to discontinue these proceedings had no bearing whatever upon her Honour's task.

28 There was then a somewhat unedifying debate between the judge and counsel as to what inferences might legitimately be drawn from a mathematical perspective from the fact that three previous juries had been unable to agree on a verdict.

29 Counsel then returned to the decision in Bell,[20] and again reminded her Honour of the practice regarding second retrials as set out in the various prosecutorial guidelines. He submitted that it was odd, at the very least, that Victoria alone, of all common law jurisdictions throughout the world, had not developed any guideline regarding second retrials. It was significant that no prosecuting authority in any common law jurisdiction had even contemplated the possibility of a third retrial.

30 When counsel next submitted that there had to be a point beyond which an accused could not be endlessly retried, the judge's immediate reaction was telling. She said, '[w]ouldn't the Director stop it?'.[21]

31 That failure to address the role of the Court in dealing with such a situation prompted some strong rhetoric on the part of counsel. He described the Director's decision to proceed with a fourth trial in this case as 'outrageous'. The judge replied that the decision in question involved an executive function to be exercised by the Director, and seemingly with little direct involvement by the Court.

32 Counsel next submitted that but for the fact that the complainant had not been required to give evidence more than once (and even then had only done so by way of a VARE followed by a special hearing), a third retrial could never have been a realistic possibility. The judge replied that the Crown should not, in her view, be discouraged from relying upon audio visual recordings as evidence, and expressed concern that a decision to grant a stay in response to counsel's submission might have that effect.

33 The judge then referred counsel to Donald,[22] and in particular to the remarks of Wells J. There, his Honour characterised the decision to grant a permanent stay as tantamount to a finding that the Attorney-General (at that time the primary prosecuting authority in South Australia) had behaved in an outrageous manner.

34 The judge below then noted that there had been very few stays granted in this State in circumstances where the Director had decided to proceed with a retrial. She added that she was not aware of any challenge ever having been mounted to the exercise of the Director's discretion in that regard.

35 Counsel then submitted that although there had been three trials in Donald, the circumstances of that case were different in that two of the three trials had resulted in convictions (one having been overturned on appeal), with one having been deadlocked. This was said to be a far cry from a fourth trial, stemming from three previous hung juries.

36 Finally, counsel submitted that, viewed objectively, it was patently oppressive to put the applicant in the situation of having to run the gauntlet a fourth time. He noted that the applicant was the sole carer of his three children aged 11, 12, and 14. He emphasised the strain that would necessarily be undergone in standing trial yet again.

37 The prosecutor at trial, (who was not junior counsel for the Crown before this Court), submitted that no permanent stay was warranted. It is instructive to note that she put the matter this way:

The ... most important issue is this, Your Honour, that both the chief - chief prosecutor and the Director have looked at this very carefully. Whereas my learned friend did not sit down and speak to either of them, I want to make this clear. The advice that's been provided is prefaced upon this being the final trial. So whereas my friend was saying: 'Well, where does one draw the line?' and - and so on, the advice that's been given by the Director is, there is a strong public interest in this matter. Having taken all the matters into account, he is satisfied on the balance that this case should be heard again for one more trial and so lest there be any confusion about that, the determination that was made by both the Director and the Chief Crown Prosecutor is prefaced upon this being the last effort being made to try the accused man.[23]

38 The prosecutor then addressed the applicant's purported reliance upon the prosecutorial guidelines throughout the rest of Australia and overseas. She said:

However, Your Honour, I disagree with my learned friend's summation of what the other Directors in the other States have said. I've been through all of them and all of them, whilst mentioning two or more trials, Your Honour, also speak of the factors, the various factors that they take into account. For example, in New South Wales, when Nicholas Cowdery set out the prosecutorial guidelines, he set out four different factors, two of which are somewhat pertinent to this case. 1) What the attitude of the victim is. 2) The seriousness of the offence. Now - and in this case, it is a case where we have a complainant who is very keen to proceed with a retrial. Very keen, because as Your Honour has heard evidence of, she speaks of a gross breach of trust that took place by her stepfather. It's - and so I'm directing this argument, Your Honour, towards the gravity of the offending.

...

These are objectively serious matters and that's why - my learned friend has mentioned that Bell is in his favour. Bell - the case of Bell is not favourable to his argument, because first of all, the Court rejected the application for a stay in that, but secondly they said it - it depends on a variety of factors and one of which they say is the gravity of the - the seriousness of the allegations.

Now Your Honour and my learned friend is far more apprised of what the allegations amount to in this case, but it doesn't (sic) amount to a young girl alleging that on numerous occasions, set aside the - the indictment as such, but on numerous occasions, was sexually assaulted by her stepfather, who was at that time really the only effective parent in her life, as I understand it. So we're not, insofar as public interest is concerned, we're not talking about one of those trials that concerns a minor level of offending, Your Honour. This is, in my submission - these are serious matters and that, of course, weighs heavily in the Director's favour in this application.

Your Honour, I take you to one case, really, that sets out my argument, or synthesises my argument and I'll provide that to you. It's a case of Henworth, which was heard in the United Kingdom and there's just one excerpt at paragraphs - paragraphs 26 and 27, Your Honour, thank you and it's 26 and 27, Your Honour, where - where the court begins by saying: 'Having said that' - this is paragraph 26 - 'we recognise the possibility that in any given case, a time may come when it would be an abuse of process for the prosecution to try again. Whether that situation arises must depend on the facts of the case which include; (1), the overall period of delay and the reasons for the delay; (2), the results of previous trial; (3), the seriousness of the offence or offences under consideration; and (4), possibly the extent to which the case now to be met has changed from that which was considered in previous trials.

In my submission, Your Honour, if you take those four factors apart, that is the overall period of delay, well this is a far cry from the likes of Jago and Ors where there - where there's an inordinate delay clearly that's a very strong argument. In my submission there's no such argument prevailing in this case because the accused was charged in 2014, mid-2014, and the last trial - the third trial, that is, was completed on 16 November 2015.[24]

Your Honour, insofar as the willingness of the victim because it's the New South Wales prosecutorial guidelines along with ours that now make reference to that factor. Both the complainant and her mother, in my submission, would be appalled if they were informed that the state of Victoria were ill-prepared to re-try the accused. So I put that on the record less there be any confusion about that.

The fact that there is a tape recording to be played really doesn't change the matter because she too would be foreseeably anxious about the outcome when every single trial has been empanelled.

Your Honour, my learned friend's argument amounts to this really, that in this case it's, 'we should have', or, 'Your Honour should exceed (sic) to a three strikes and you're out policy', really. I've not gleaned - obviously the oppression factor, that's an important factor and I recognise that of course. But other than that it's not a case where submissions or evidence has been put before the courts saying that there's been a dreadful delay or as Your Honour cited from that case there's been something outrageously wrong or abusive in the way in which the prosecution has put their case before the courts.[25]

We talk of - my learned friend has spoken of public interest. Well, it would be contrary to the public interest if judicial officers of this state said, 'All right, well notwithstanding the various factors of the case you've had three shots at a trial. None of them have secured a conviction. The time has now come to call it quits'. That's the way in which the arguments have been put, Your Honour.

Because that of itself would encourage or could dilute what we say is the most important thing about - feature to our jury system and that it the integrity of this system. You couldn't possibly have a situation where you hit the third trial situation - or you've failed three times therefore no further trials. In my submission that would be outrageous and lead to treacherous outcomes potentially.[26]

41 It must be said that the judge's ruling was brief in the extreme, extending over some six pages, but with only one paragraph purporting to explain why the stay had been refused.

42 Having first set out the history of the matter, the judge summarised the prosecutor's submissions as follows:

The prosecution submitted there was a strong public interest in proceeding with the fourth trial given the very serious nature of the allegations. This issue should be resolved by a jury a final time. It was indicated [that] if a jury were unable to reach a verdict in this trial, the proceedings would be discontinued. The prosecution challenged the defence submission that conducting this trial would bring the criminal justice system into disrepute.

Although the prosecution conceded that the court had power to intervene to control its own proceedings, that could only be exercised in exceptional circumstances, which did not exist in these proceedings. In respect of this matter, I was informed that both the Director of Public Prosecutions and the chief Crown prosecutor had considered that it was in the public interest to continue with the proceedings, particularly given the objective seriousness of the offences.

This case, it was submitted, was not one more commonly considered by the authorities, where there had been a delay in prosecuting or some other malfeasance alleged against the prosecuting authority. The circumstances were not such as to warrant the intervention of this court to stay the proceedings.

Dealing first with the argument that a fourth trial would bring the criminal justice system into disrepute, it was submitted by defence counsel that the random process of jury selection had been compromised or infected. That is, on three occasions 12 jurors had not been able to agree and that was reflective of the nature of the case as seen by a representative sample of the community.

Various probabilities and/or combinations of numbers were referred to, so as to illustrate that the random nature of jury selection would, by empanelment of a fourth jury, be compromised. I do not accept that argument. The best that can be said is that on three separate occasions, 12, or at least 11 jurors, could not agree. No other inference can properly be drawn. The random nature and selection process remains in the empanelment of a fourth jury.

The other argument relates to oppression in taking the matter to trial a fourth time. This argument related both directly to the effect on the accused and the submissions that the conducting of another trial is contrary to the expected community standards in the administration of criminal justice.

Those standards, it was submitted, are to be determined by the guidelines in other states and countries regarding prosecutorial discretion. I have considered each of the guidelines provided and referred to by counsel. I note that Victoria has no published guideline directly on this issue.[27]

43 Her Honour then summarised the applicant's submissions as follows:

Counsel for the defence submitted as follows: the Directors of Public Prosecutions of the Commonwealth, New South Wales, Queensland, South Australia, Western Australia and New Zealand, England and Wales have all published guidelines on the question of retrials after hung juries. In all of those jurisdictions the guidelines state that the third prosecution, after two hung juries, should only be brought in exceptional or special circumstances.

It was submitted by defence that such special or exceptional circumstances did not exist in this case and that the public interest would not be served by continuing with these proceedings. Neither party was able to provide assistance in respect of an authority that has considered this situation in this state. It would appear that it is somewhat novel.

The rationale for the power of the court to intervene to stay proceedings stems from a concern and to ensure that the court processes themselves are not used by a party - in this instance, the prosecution - [in a way] which of itself would lead to injustice and oppression. Without that power to intervene, the public confidence in the court process could be reduced and consequently diminish the court's ability to function or administer the law.[28]

44 Having then cited two passages from the judgment of the New Zealand Court of Appeal in Moevao,[29] the judge gave her reasons. She said only this:

I have considered the fairness and the effect on the accused in proceeding with another trial. Whilst the guidelines provide some insight into the exercise of prosecutorial discretion in other similar jurisdictions, they are not binding either in the jurisdiction to which they apply or in this state.

As is recognised, it is an extreme step to intervene by granting a stay and should only be taken with great caution. Having taken into account all the relevant matters, I am not prepared to grant a stay in these proceedings.[30]

45 Counsel for the applicant largely repeated the submissions that had been advanced before the judge below, but presented them in a more helpful and carefully nuanced manner.

46 It was submitted that there was nothing about this case which warranted the special or exceptional course of conducting a third retrial. The indictment alleged sexual offending of a kind, regrettably, all too routinely dealt with in the County Court.

47 In that regard, the applicant relied upon three cases bearing upon justification for granting a permanent stay.

48 First, he referred to Bell,[31] where Lord Judge CJ, delivering the judgment of the Court of Appeal, observed that a second retrial where two juries had failed to agree upon a verdict could be had. However, this should occur only in one of the very small number of cases in which the jury was being invited to address a crime of 'extreme gravity' which undoubtedly had been committed. Moreover, before ordering a second retrial, rather than staying the proceeding as an abuse of process, the judge should be satisfied that there was powerful evidence that the defendant had committed the crime.

49 Counsel further submitted that the correct approach to whether there should be a second retrial was that set out in R v Ali.[32] There, Thomas LJ said:

It is well established that a defendant should not be subject to a second retrial unless the interests of justice (which require a fair trial in circumstances which are neither oppressive or unjust) justify a second trial ... Although the Crown must decide first whether it is in the interests of justice to seek a re-trial, it is for the court to decide whether there should be a re-trial. In doing so, it must undertake a dispassionate and informed assessment of how the interests of justice are best served, taking full account of the defendant's interest and the public interest of convicting the guilty and maintaining public confidence in the efficacy of the criminal justice system...[33]

50 The applicant next replied upon Burton v The Queen,[34] where Treacy LJ observed:

It is clear to us that the number of cases in which a third trial is permitted should be strictly limited in order to maintain public confidence in the criminal justice system and provide a degree of finality for a defendant. It is for that reason that the court must proceed with extreme caution. If a crime is truly one of extreme gravity and the evidence is cogent despite the problems experienced by previous juries then it may well be an affront to justice and more likely to undermine public confidence not to pursue the aims of convicting the guilty and deterring the most serious crimes.[35]

51 The applicant submitted that the present case had none of the hallmarks that might justify a second retrial, still less a third retrial. Bell[36] involved an horrific sexual assault and murder of a 17 year old girl. Ali[37] was a terrorism case, and Burton involved an appeal against conviction for conspiracy to import a large quantity of cocaine, with a sentence of 14 years' imprisonment imposed. These were truly cases of offending of extreme gravity. The applicant's offending as alleged, though undoubtedly serious, could in no way be equated with those English cases.

52 The applicant also referred to the well-known decision of the United States Supreme Court in Green v United States.[38] There, it was said that the State should be prevented from repeatedly attempting to convict an accused in circumstances where to do so would subject that accused 'to embarrassment, expense and ordeal, and compelling him [or her] to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty'.[39]

53 Finally, in relation to relevant authority, the applicant referred to DS v The Judges of the Cork Circuit[40] where the Supreme Court of Ireland spoke of 'the inherent dangers of repeat trials'.[41] One member of that Court observed that, in the ordinary course, two trials resulting in hung juries should be the limit, save in unusual circumstances.[42] These might include the gravity of the offences, any contribution by the accused to his or her predicament, any delay, and any difference in the evidence.

54 The applicant then submitted that the judge's refusal to stay this fourth trial was manifestly wrong. Therefore, notwithstanding that this application involved a challenge to the exercise of discretion, the decision should be set aside.

55 In the alternative, the applicant submitted that the ruling below should be set aside for specific error because:

• the judge had failed to appreciate the nature of the argument put below as to inconsistency of verdicts. Should a fourth jury convict where three previous juries had been unable to agree (in circumstances where the evidence was exactly the same) public confidence in the administration of justice would be diminished;

• the judge had failed to accord any, or any proper, weight to the impressive line of authority cited to her which made it clear that even a second retrial should be a rarity, and a third almost inconceivable;

• the judge had approached the matter from entirely the wrong perspective. She should not have concerned herself at all with whether the Director had behaved appropriately, but only with whether, viewed objectively, it would be unfair and oppressive to the accused to conduct a fourth trial; and

• implicitly, the judge should not have been influenced, assuming of course that she had been, by the strongly held wishes of the complainant and her mother that there be yet another trial. In that regard, the judge should have borne in mind that the complainant in a case of this kind would not have to give viva voce evidence in any future trial.

56 The Crown in reply submitted that it was a matter for the Director to decide whether to prosecute upon indictment, and not the court. The power to grant a permanent stay should be exercised only in the most exceptional circumstances. The guidelines published by other prosecuting agencies were of no relevance to Victoria. Similarly, the English and other authorities upon which the applicant relied were not only not binding upon this Court, but were of limited assistance given the fact that specific prosecution guidelines applied in those jurisdictions.

57 The Crown further submitted that this application involved a challenge to the exercise of the judge's discretion. That meant that any review of the decision below was subject to the well-established principles set out in House v The King.[43]

58 The Crown also submitted that it would not be unfairly or unjustifiably oppressive to conduct a fourth trial. There was a strong public interest in bringing this matter to trial once more because these were allegations of serious sexual offences having been committed against a child. It could not be said that this was a weak case, and there was no suggestion that the complainant was in any way an unreliable witness.

59 Finally, the Crown submitted that the judge had been entitled to take into account that the decision to conduct a fourth trial had been taken by both the Director and the Chief Crown Prosecutor. That decision had obviously been carefully considered.

60 We vacillated on the question whether the refusal to grant a permanent stay in these circumstances should be regarded as so clearly wrong as to warrant ourselves exercising that power.

61 However, because this case was being dealt with on an interlocutory basis, and therefore the Court was not provided with the evidence that had been led at each of the previous trials, no assessment could confidently be made of the strength of the Crown case.[44] Theoretically, that might affect the resolution of the question whether there should be a third retrial.

62 Nonetheless, the Court was satisfied that the decision below should be set aside on the basis of specific error.

63 The paucity of reasons given by the judge in her ruling made it all the more important, as we have said, for this Court to focus to some degree upon the nature of the argument that had been addressed to her. In that regard, it was necessary to consider a number of the submissions that had been advanced on behalf of the Crown below. It must be said that they were unsatisfactory in a number of key respects. It must also be said that they appear to have influenced the judge's resolution of the application.

64 First, the transcript reveals that the prosecutor invited the judge to accord great weight to the fact that the decision to conduct a fourth trial had been taken at the highest levels within the Office of Public Prosecutions. With respect, in our view that was scarcely relevant when considering whether a fourth trial would be unduly oppressive. Plainly, it was for the judge herself to answer that question. She should not have been invited, as she obviously was, to defer in any way to the views of the Director or the Chief Prosecutor. Although counsel for the applicant below at one point labelled their decision 'outrageous', their conduct was not under challenge.

65 Second, one might have thought that the extensive references by counsel for the applicant to the decision of the English Court of Appeal in Bell[45] would have excited some attention on the part of the judge in her ruling. It was, after all, a decision of a court of great distinction, delivered by the Lord Chief Justice, on an important point of principle involving the common law. Yet the judge's ruling made no mention of the case.

66 Third, the judge's ruling was extremely dismissive of the fact that prosecutorial guidelines in many other common law jurisdictions made it clear that even a second retrial should be a rare and exceptional occurrence. Of course, the judge had been invited by the prosecutor to ignore both Bell, and the guidelines. But she should not, with respect, simply have accepted that invitation. Mature consideration would have pointed up their relevance. The guidelines, though obviously not binding in this State, do provide an indication of just how the most eminent prosecuting authorities throughout the common law world view the balancing exercise to be undertaken in relation to even a second retrial. To that extent, they represent an important component of the reasoning to be adopted in assessing where the public interest lies.

67 Fourth, it was wrong of the prosecutor to have submitted to her Honour that:

You couldn't possibly have a situation where you hit the third trial situation - or you've failed three times therefore no further trials. In my submission that would be outrageous and lead to treacherous outcomes potentially.[46]

Those submissions were apt to distract the judge from her task. They were inflammatory and in part difficult to understand. What was meant by 'treacherous outcomes potentially'?

68 Fifth, we refer to the prosecutor's submissions that - (1) the attitude of the victim was relevant to the exercise of the prosecutorial discretion, (2) the complainant was 'very keen for the matter to proceed' with a retrial,[47] (3) 'the complainant and her mother...would be appalled if they were informed that the State of Victoria were (sic) ill-prepared to re-try the accused',[48] and (4) the fact that a tape-recording would be played 'really [didn't] change the matter, because [the complainant] too would be foreseeably anxious about the outcome when every single trial (sic) has been empanelled'.[49]

69 Although submissions (1), (2) and (3) were relied upon to support the particular exercise of the prosecutorial discretion - which was not the matter for the judge's determination - submissions (2) and (3) had the definite potential, particularly in combination with submission (4), to set up a fairness 'contest', in which the ordeal of the applicant being in the dock, in the hands of a jury for a fourth time was compared with the complainant's keen desire to proceed and what was said to be her foreseeable anxiety about the outcome of the trial. This was of twin significance. It implied that the complainant's desire to proceed was a matter to which account should be given on the stay application; and it was apt to lead the judge not giving the 'fairness and the effect on' the applicant of a fourth trial the weight which it deserved. The judge's ruling certainly implies that her Honour's weighting assessment went wrong.

70 Accepting that the attitude of a complainant is a circumstance relevant to the question whether a permanent stay should be granted, the complainant's professed position in this case draws attention to an odd and discriminatory feature about this matter. We said at paragraph [11]of these reasons that we would later address it.

71 In argument in this Court, there was the following interchange between the Bench and the Chief Crown Prosecutor:

COGHLAN JA: ... You know, we just don't see this sort of position.

MR SILBERT: Your Honour, it is clearly

COGHLAN JA: And one of the reasons we wouldn't have seen it in the past, I suspect is, if you were genuinely looking at the complainant giving evidence for the fourth time

MR SILBERT: Yes, you wouldn't do it.

COGHLAN JA: I don't think the matter would have proceeded.

MR SILBERT: No, you wouldn't do it and it is

WEINBERG AP: You wouldn't go through it if she was to be crossexamined a fourth time.

MR SILBERT: Absolutely not.[50]

Is there not something ironic about the fact that a statutory procedure which was put in for the, I would imagine, primary purpose of protecting a complainant has a kind of unanticipated effect so far as an accused is concerned, the complainant isn't asked the question, 'Do you want to go on again because all you have to do is press the replay button', and again and again. Somebody said she's got no skin in the game, I think I've found that expression used somewhere. Whereas for the accused, there is the ordeal of standing trial, being in the dock each time in the hands of a jury, once, twice, three times and then a fourth time,[51]

which elicited this reply from the Chief Prosecutor:

Can't argue with that either, your Honour.[52]

73 We should mention also this interchange between Ashley JA and the Chief Prosecutor:

ASHLEY JA: It's got another odd feature to it, perhaps, that the consequence of the ability to press the replay button in a sex offences case, means that relative to other charges in the criminal calendar, an accused in such a case faces a risk, this case being the preeminent illustration, which an accused, in other situations, murder, manslaughter, aggravated burglary, call it what you will

MR SILBERT: Doesn't face.

ASHLEY JA: doesn't face and there seems to be something wrong about that.

74 Now, as we have emphasised, the exercise of the prosecutorial discretion was not under review by the judge, and we are not now seeking to criticise the exercise of that discretion because it appeared to take advantage of legislative provisions which had another purpose. But the apparently discriminatory operation of criminal law procedures - because a 'push button' trial could be had[53] - this bearing upon oppression and unfairness to the applicant, was a matter which was pertinent to the judge's weighing exercise. It was a matter opened up, though not squarely so, by the applicant's counsel below. It was a matter connected with submission (4) noted at paragraph [68] of these reasons. It was a matter which deserved attention in the judge's ruling. But in argument, the judge had adopted a very different standpoint, saying to applicant's counsel:

I don't know whether it's a good idea to discourage the Crown to rely on taped evidence, but anyway.[54]

Applicant's counsel did not demur. But the real point was lost.

75 Enough has been said to indicate that the judge's ruling could not be permitted to stand. Her Honour was invited to have regard to a number of factors, some of them of dubious relevance, in relation to the exercise of her discretion. We can infer from the little that she said that she acted upon some of them. About others, the impermissible paucity of the reasons means that we cannot say one way or the other whether she allowed herself to be swayed.[55]

76 It was for these reasons that we concluded that this application should be heard again, albeit by a different judge. Accordingly, we remitted it to the County Court for that purpose.

[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 applicant's name.

[2] Quite apart from the Court's own research, counsel for the parties stated that they had not found any such case.

[3] W_illiams v Spautz_ [1992] HCA 34; (1992) 174 CLR 509, 520 (Mason CJ, Dawson, Toohey and McHugh JJ) ('Williams').

[4] A direction in accordance with the law as stated in Black v The Queen [1993] HCA 71; (1993) 179 CLR 44, 51-52 (Mason CJ, Brennan, Dawson and McHugh JJ).

[5] Connelly v DPP [1964] AC 1254; Moevao v Department of Labour [1980] 1 NZLR 464 ('Moevao'); Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 ('Jago'); Williams [1992] HCA 34; (1992) 174 CLR 509; and Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456.

[6] Williams [1992] HCA 34; (1992) 174 CLR 509, 520 (Mason CJ, Dawson, Toohey and McHugh JJ); and R v Swingler [1996] VicRp 17; [1996] 1 VR 257 ('Swingler').

[7] R v Edwards [2009] HCA 20; (2009) 255 ALR 399 ('Edwards'); and TS v The Queen [2014] NSWCCA 174.

[8] Williams [1992] HCA 34; (1992) 174 CLR 509.

[9] Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75; Jago [1989] HCA 46; (1989) 168 CLR 23; R v Glennon [1992] HCA 16; (1992) 173 CLR 592 ('Glennon'); Walton v Gardiner (1993) 177 CLR 378 ('Walton'); Swingler [1996] VicRp 17; [1996] 1 VR 257; Edwards [2009] HCA 20; (2009) 255 ALR 399; and Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237, 245 ('Dupas').

[10] Dupas [2010] HCA 20; (2010) 241 CLR 237, 251 [37].

[11] Walton (1993) 177 CLR 378; and Edwards [2009] HCA 20; (2009) 255 ALR 399.

[12] [2001] EWCA Crim 2245; [2010] 1 Cr App R 27 ('Bell'). Counsel also referred to R v Donald (1983) 34 SASR 10 ('Donald'); and Walton (1993) 177 CLR 378.

[13] Office of the Director of Public Prosecutions (Commonwealth), Prosecution Policy of the Commonwealth, 9 September 2014, [6.26].

[14] Office of the Director of Public Prosecutions (New South Wales), Prosecution Guidelines, 1 June 2007, [31].

[15] Office of the Director of Public Prosecutions (Queensland), Director's Guidelines, 1 August 2014, [51].

[16] Office of the Director of Public Prosecutions (South Australia), Statement of Prosecution Policy and Guidelines, October 2014, Guideline 5.

[17] Office of the Director of Public Prosecutions (Western Australia), Statement of Prosecution Policy and Guidelines, 2005, [137].

[18] Crown Law Office (New Zealand), Prosecution Guidelines, 1 January 2010, [23].

[19] Crown Prosecution Service (England and Wales), Retrials, https://www.cps.gov.uk/legal/p_to_r/retrials/.

[20] [2001] EWCA Crim 2245; [2010] 1 Cr App R 27.

[21] Transcript of Proceedings, In the matter of an Application by [Brent Clark], County Court of Victoria, CR 14-02108, Judge Quin, 28 January 2016, 14 ('Transcript').

[22] Donald (1983) 34 SASR 10.

[29] [1980] 1 NZLR 464.

[31] [2001] EWCA Crim 2245; [2010] 1 Cr App R 27.

[33] Ibid 1102 [120] (citations omitted).

[34] [2016] 1 Cr App R 7.

[36] [2001] EWCA Crim 2245; [2010] 1 Cr App R 27.

[38] [1957] USSC 148; (1957) 355 US 184 ('Green'), cited with approval by at least three individual High Court justices. See Demirok v The Queen (1977) 137 CLR 20, 37 (Murphy J); Davern v Messel [1984] HCA 34; (1984) 155 CLR 21, 67 (Deane J); and Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, 636 [90] (Kirby J).

[39] Green [1957] USSC 148; (1957) 355 US 184, 187-188.

[40] [2008] IESC 37; [2008] 4 IR 379.

[43] [1936] HCA 40; (1936) 55 CLR 499, 504-5 (Dixon, Evatt, and McTiernan JJ).

[44] That is so although the Court was provided with a summary of the prosecution opening which contained information sufficient to glean a certain understanding as to why it was that the prosecution case had not been accepted to the criminal standard by even a majority of jurors on three occasions.

[45] [2001] EWCA Crim 2245; [2010] 1 Cr App R 27.

[50] Transcript of Proceedings, Clark (a Pseudonym) v The Queen (Unreported, Court of Appeal, Weinberg AP, Ashley and Coghlan JJA, 21 April 2016) 28. ('Appeal Transcript').

[53] Whilst section 232(1)(c) of the Criminal Procedure Act 2009 is not limited to sexual offence matters, it has discretionary operation. But the evidence of the complainant was required to be by VARE, and cross-examination by the special hearing procedure.

[55] See Ashley v Slipper [2014] FCAFC 15; (2014) 219 FCR 322, 342 [53] where Mansfield and Gilmour JJ state, 'Appellate review of the exercise of power by a judge to stay or dismiss a proceeding on grounds of abuse of process "looks to whether the primary judge acted on a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration"', relevantly applying R v Carroll (2002) 213 CLR 635 as adopted by the majority in Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256.