Frazier (a Pseudonym) v The Queen [2017] VSCA 370

1 The applicant is facing trial in the County Court on six charges of sexual offending against a child under 16. The most serious are charges 2 and 3, for each of which the indictment identifies the offence as being:

sexual penetration of a child under 16 contrary to s 45(1) of the Crimes Act 1958 as amended by the Crimes (Amendment) Act 2000.

Importantly for present purposes, each of charge 2 and 3 is stated in the indictment to be 'a Course of Conduct Charge'.

2 As will appear, a course of conduct charge is 'a charge for a relevant offence that involves more than one incident of the offence'. That definition, and the requirements for particularisation and proof of such a charge, are set out in detail in cl 4A of sch 1 to the Criminal Procedure Act 2009 ('Schedule').

3 The applicant applied for a stay of those charges, principally on the ground that the prosecution had not provided sufficient particulars of the 'incidents of the offence' said to constitute the course of conduct in each case. The judge refused the application, pointing out correctly that the provisions in the Schedule expressly relieve the prosecution of the obligation to particularise a course of conduct charge in the way contended for.

4 Counsel for the applicant then asked the judge to certify under s 295(3)(b) of the Criminal Procedure Act 2009 ('Act') that the interlocutory decision was:

of sufficient importance to the trial to justify it being determined on an interlocutory appeal.

the arguments that were put in support of a stay were without merit and I regard the prospects of appeal as hopeless.

5 Undeterred, the applicant applied under s 296(1) of the Act for a review of his Honour's refusal to certify. The application was filed on the afternoon of Thursday 30 November 2017. It was heard at 9:30 am the following day. After hearing argument, but without calling on the respondent, we announced that the application would be refused and that our reasons would be published subsequently. These are those reasons.

6 We respectfully agree with the judge's conclusions, both in refusing the stay application and in refusing to certify. The arguments put in support of the stay were without merit and were rightly rejected. His Honour was entirely correct to refuse to certify.

7 The requirement for certification is no mere formality.[2] Certification is a statutory precondition of the right to seek leave to appeal. As discussed more fully below, the requirement for certification reflects Parliament's recognition that the judge who has made the interlocutory ruling will usually be best placed to decide whether the applicable precondition to certification in s 295(3) of the Act - in this case, whether the subject-matter was 'of sufficient importance to the trial to justify it being determined on interlocutory appeal' - is satisfied.

8 Accordingly, on an application to review a refusal to certify, this Court will ordinarily attach considerable weight to the judge's decision regarding the applicable precondition. In any case, such an application is governed by the principles in House v The King.[3] Accordingly, appellate intervention is only justified if specific error is established or the Court is persuaded that the decision to refuse certification was not reasonably open in the circumstances.

9 The nature and extent of the evidence which the complainant will give in this trial appears from the amended prosecution opening. The relevant extract is as follows:

1. On some occasions, the accused took off the complainant's underwear by pulling them half way down her legs. The accused sometimes penetrated her vagina with a finger. The complainant says that the accused put his fingers inside her vagina on numerous occasions during the early hours on Sunday mornings at the age of 14 years. (Charge two - sexual penetration of a child under the age of 16 - course of conduct).
2. The complainant does not remember how many times the accused put his fingers inside her vagina. The accused would touch her more often when she was 14 years old because she started to look like a little woman. The accused put his fingers insider her vagina about 30 times between the ages of 10 and 14, maybe half of those times occurred when she was 14 years old.

1. The accused also put his tongue into her vagina, it was not just once it happened a 'couple of times' around the time she turned 14 years of age. (Charge three - sexual penetration of a child under the age of 16 - course of conduct). When the accused performed oral sex on the complainant he asked her if 'it felt good' and the complainant told him she didn't feel anything. The complainant says this happened on numerous occasions during the early hours on Sunday mornings at the age of 14 years ....
2. At age 12 she got her period, this is when things became worse for the complainant as the oral sex became more constant. The accused performed oral sex on the complainant 20 times between the ages of 10 and 14 years, half of those 20 times happened when the complainant was 14 years old.

10 Before addressing the applicant's arguments, it is necessary to set out the relevant provisions.

11 A 'course of conduct charge' is defined in cl 4A(1) of the Schedule as a 'charge for a relevant offence that involves more than one incident of the offence'. Sub-clause 2 provides as follows:

(2) More than one incident of the commission of the same relevant offence may be included in a single charge only if -

(a) each incident constitutes an offence under the same provision; and

(b) for a charge for a sexual offence, each incident relates to the same complainant; and

(c) the incidents take place on more than one occasion over a specified period; and

(d) the incidents taken together amount to a course of conduct having regard to their time, place or purpose of commission and any other relevant matter.

12 The following sub-clauses of cl 4A are also relevant:

(8) The prosecution must prove beyond reasonable doubt that the incidents of an offence committed by the accused, taken together, amount to a course of conduct having regard to their time, place or purpose of commission and any other relevant matter.

(9) However, to prove a course of conduct offence it is not necessary to prove an incident of the offence with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted only by that incident.

(10) Without limiting sub-clause (9), it is not necessary to prove -

(a) any particular number of incidents of the offence or the dates, times, places, circumstances or occasions of the incidents; or

(b) that there were distinctive features differentiating any of the incidents; or

(c) the general circumstances of any particular incident.

(11) Without limiting clause 1(b), the particulars necessary to give reasonable information as to the nature of a course of conduct charge -

(i) the fact that the charge is a course of conduct charge; and

(ii) the limitations contained in sub-clause (2); and

(iii) the fact that the various incidents of the offence are alleged to have occurred over a period of time; and

(b) need not include particulars of any specific incident of the offence, including its date, time, place, circumstances or occasion; and

(c) do not need to distinguish any specific incident of the offence from any other.

13 Counsel for the applicant relied on the requirement in cl 4A(2)(a) that:

More than one incident of the commission of the same relevant offence may be included in a single charge only if -

(a) each incident constitutes an offence under the same provision.

In a written submission provided to the judge, counsel noted that clauses 4A(9) and (10) 'purport to reduce the requirements for particularity in relation to incidents'. Counsel submitted, however, that:

[T]he fundamental requirements of particularity should not be overridden - in order to prove a course of conduct charge, a series of discrete offences need to be proved and in order for these to be proved they need to be sufficiently particularised.

14 The submission relied on the general principles set out in PPP v The Queen,[4] and on decisions on the (different) offence of persistent sexual abuse of a child under 16.[5] As the judge pointed out to counsel in the course of argument, however, this submission was simply untenable, given the clear provisions of the Schedule. Those provisions make unambiguously clear both what has to be proved and what does not have to be proved.

15 What must be proved beyond reasonable doubt is that

the incidents of an offence committed by the accused, taken together, amount to a course of conduct having regard to their time, place or purpose of commission and any other relevant matter.[6]

(a) any particular number of incidents of the offence or the dates, times, places, circumstances or occasions of the incidents; or

(b) that there were distinctive features differentiating any of the incidents; or

(c) the general circumstances of any particular incident.[7]

16 As a result, the particulars required for a course of conduct charge

need not include particulars of any specific incident of the offence, including its date, time, place, circumstances or occasion; and

do not need to distinguish any specific incident of the offence from any other.[8]

17 As this Court pointed out recently in McCray (a pseudonym) v The Queen:

The purpose of introducing the 'course of conduct' offence was to permit the charging of more than one incident of the offence in circumstances where it might be difficult for a complainant to distinguish one act of abuse from another, given the repeated nature of the offending. As can be seen from the provisions of clause 4A set out above, the usual evidentiary strictures have been lifted. In particular, clause 4A(10)(a) makes clear that it is 'not necessary to prove any particular number of incidents of the offence'.[9]

18 As appears from the extracts from the prosecution opening set out earlier, this is the very kind of case for which the 'course of conduct' offence was designed.

19 Counsel for the applicant submitted to the judge, and again on this application, that because s 45 of the Crimes Act 1958 had been amended during the period of the alleged offending, incidents of the offence which had occurred before the amendment were not 'offences under the same provision' as incidents which occurred after the amendment.

20 This argument was also without foundation. As the judge pointed out to counsel, there had been no change to the offence provision, s 45(1). The alleged incidents were all 'offences under the same provision'.

21 On 1 June 2007, the commencement period for each course of conduct charge, s 45 read in relevant part as follows:

(1) A person who takes part in an act of sexual penetration with a child under the age of 16 is guilty of an indictable offence.

(2) A person who is guilty of an offence against subsection (1) is liable -

(a) if the court is satisfied beyond reasonable doubt that the child was, at the time of the offence, under the age of 10, to level 2 imprisonment (25 years maximum); or

(b) if the court is satisfied beyond reasonable doubt that the child was, at the time of the offence, aged between 10 and 16 and under the care, supervision or authority of the accused, to level 4 imprisonment (15 years maximum); or

(c) in any other case, to level 5 imprisonment (10 years maximum).

...

(5) A circumstance of aggravation described in subsection (2) is not an element of an offence against subsection (1) but must be stated in the presentment.

(6) An accused who takes issue with a circumstance of aggravation described in subsection (2) and who wishes to have the matter determined on the trial may do so by pleading not guilty to the offence with which he or she is charged even if he or she does not take issue with any acts, facts, matters or circumstances relied upon by the prosecution to support a finding of guilt.

(7) A circumstance of aggravation described in subsection (2) -

(a) is to be determined by the jury if the accused pleads not guilty to the offence; and

(b) is to be determined by the trial judge if the accused pleads guilty to the offence.

22 On 17 March 2010 amendments to this provision came into effect, with the result that the maximum penalty of 25 years' imprisonment under s 45(2)(a) was to be available in instances of sexual penetration of a child under the age of 12, where previously it had only been available in instances involving children under the age of 10. Accordingly, the references to age 10 in sub-ss (2)(a), (2)(b), (3)(a) and (4) were replaced with references to age 12. Further, subsection (2)(c) was amended as follows:

(c) in any other case of sexual penetration of a child between the ages of 12 and 16, to a level 5 imprisonment (10 years maximum).[10]

23 As the judge correctly stated in his ruling, these changes did not alter the course available to the prosecution in this case. The complainant was 10 years of age at the earliest time specified on the indictment and, as of 16 March 2010, the day before the age was raised to 12 as described above, she was older than 12 years of age. Accordingly, the 'circumstance of aggravation' described in s 45(2)(a) was not available to the prosecution either before or after the amendments that came into effect in March 2010.[11]

24 Counsel for the applicant nevertheless maintained in this Court that the prosecution must 'nail its colours to the mast' as to whether it was relying on sub-paragraph (a), (b) or (c) of s 45(2). In response to questions from the Court, however, counsel conceded that it was clear, both from the terms of the indictment and from the statements made by the prosecutor to the judge, that no 'circumstance of aggravation' was relied on. As a result, his client was in no doubt that if he were convicted of either of those charges, the applicable penalty provision would be s 45(2)(c).

26 Sections 295 and 296 of the Criminal Procedure Act 2009 relevantly provide as follows:

295 Right of appeal against interlocutory decision

(1) This section applies to a proceeding in the County Court or the Trial Division of the Supreme Court for the prosecution of an indictable offence.

(2) Subject to this section, a party to a proceeding referred to in subsection (1) may appeal to the Court of Appeal against an interlocutory decision made in the proceeding if the Court of Appeal gives the party leave to appeal.

Note

See the definition of interlocutory decision in section 3.

(3) A party may not seek leave to appeal unless the judge who made the interlocutory decision certifies -

(a) if the interlocutory decision concerns the admissibility of evidence, that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case; and

(b) if the interlocutory decision does not concern the admissibility of evidence, that the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal; and

(c) if the interlocutory decision is made after the trial commences, either -

(i) that the issue that is the subject of the proposed appeal was not reasonably able to be identified before the trial; or

(ii) that the party was not at fault in failing to identify the issue that is the subject of the proposed appeal.

(4) A request for certification under subsection (3) must be determined as soon as practicable after the request is made.

296 Review of refusal to certify

(1) If a judge refuses to certify under section 295(3), the party which requested certification may apply to the Court of Appeal, in accordance with the rules of court, for review of the decision.

...

(4) On a review under subsection (1), the Court of Appeal -

(a) must consider the matters referred to in section 295(3); and

(b) if satisfied as required by section 297, may give the applicant leave to appeal against the interlocutory decision.

27 Plainly enough, the legislature intended the requirement of certification to be an important filter for interlocutory appeals. The opening words of s 295(3) are perfectly clear:

A party may not seek leave to appeal unless the judge who made the interlocutory decision certifies ...

28 As was stated in the Explanatory Memorandum for the Criminal Procedure Bill:

The requirement for certification is designed to reflect the desired balance between hearing appeals that are genuinely likely to reduce overall delays and avoiding the fragmentation of individual trials without good reason.

...

Certification in accordance with this clause is a necessary but not sufficient step for a grant of leave to appeal and the Court of Appeal must still grant or refuse leave based on the factors in clause 297.[12]

29 It is, of course, no accident that the responsibility for certification rests with the judge whose ruling is sought to be challenged. Parliament clearly recognised that the judge will usually be in the best position to judge whether the ruling - or, more accurately, the subject-matter of the ruling - satisfies the applicable precondition to certification.

30 The precondition in s 295(3) applicable in this case was that the interlocutory decision 'is otherwise of sufficient importance to the trial'. This phrase must be read in its context. The word 'otherwise' refers back to s 295(3)(a), which sets the standard of 'importance' where the interlocutory decision concerns the admissibility of evidence.

31 In such a case, the judge who made the decision must be satisfied - in order to certify - that

the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case.

As this Court has made clear repeatedly, that test was intended to limit interlocutory appeals on evidence to questions of very real significance to the trial.[13] The notion of 'sufficient importance' in s 295(3)(b) should be approached in a similar way.

32 When asked to certify, the judge must assess as best he/she can just how important the issue(s) the subject of the interlocutory decision will be to the trial, based on what the judge knows at that stage about the respective cases of prosecution and defence. One approach to assessing importance may be to pose the counterfactual question:

If I had come to a different decision on the interlocutory application, how significantly would that have affected the trial?

And, in the case of a refusal to certify, it is likely to assist this Court (should the refusal be challenged) if the judge expresses a view (as this judge did) about the strength of the arguments advanced by the losing party.

33 Given the significance which the legislation attaches to the requirement of certification, this Court will ordinarily attach considerable weight to the assessment made by the judge. As we have said, the statutory scheme makes certification a precondition of an application for leave to appeal.

34 In recent weeks, there has been a spate of applications to review a judge's refusal to certify. The present is the fifth such application since late October. For the reasons we have given, that is not how this scheme was intended to work. The legislature did not intend that refusal to certify should routinely be the subject of challenge.

35 Four of the five applications to review a refusal to certify have now been heard. In every case, the application was refused at the conclusion of argument, there being no point raised warranting further consideration.

36 Unmeritorious applications of this kind are a misuse of Court time and a waste of (mostly public) money. Legal advisers to parties in criminal proceedings should bear steadily in mind that the procedure for interlocutory appeals is to be invoked responsibly and sparingly.

[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] CGL v DPP [No 2] [2010] VSCA 24; (2010) 24 VR 482, 484 [13].

[3] [1936] HCA 40; (1936) 55 CLR 499; see Pope (a pseudonym) v The Queen [2017] VSCA 324 [45]-[48].

[4] (2010) 27 VR 68, 88 [42]ff.

[5] Reference was made to R v SLJ [2010] VSCA 16; (2010) 24 VR 372 and Ree v The Queen (2010) 203 A Crim R 11.

[6] Criminal Procedure Act 2009 sch 1 cl 4A(8).

[9] [2017] VSCA 340 [29] (citations omitted).

[10] See Crimes Legislation Amendment Act 2010 pt 2 s 3.

[11] The offence of sexual penetration of a child under 16 was further amended by the Crimes Amendment (Sexual Offences) Act 2016 s 16; see now Crimes Act 1958 ss 49A-49C. Those amendments were not applicable in this case as the charge period concluded on 31 May 2012.

[12] Explanatory Memorandum, Criminal Procedure Bill 2008 109 (emphasis added).

[13] See, eg, Paulino v The Queen [2017] VSCA 38 [8]-[10]; Harris v The Queen [2017] VSCA 316 [56]-[59].