R J P v The Queen [2014] VSCA 290

2 The applicant faces trial on an indictment which contains 13 charges of sexual offences relating to three complainants, one of whom is SK.

3 Charges 1 and 2 on the indictment are, respectively, charges of indecent assault[3] and attempted sexual penetration of a child under the age of 16 (the child being under 10).[4] The offences are alleged to have been committed against SK between 1 January and 31 December 1986, when she was aged four or five years of age. The first charge, indecent assault, is said to be constituted by the applicant licking SK's vagina; and the second charge, attempted sexual penetration of a child under 16, relates to an attempted penile-vaginal penetration, which is said to have occurred immediately following the indecent assault.

4 The applicant's case is that the acts alleged did not take place. The central issue in the trial, therefore, is whether the acts occurred.

5 In October 2009, the applicant was convicted at trial of 15 sexual offences relating to four complainants. On 16 December 2011, those convictions were quashed on appeal.[5]

6 The prosecution subsequently determined not to proceed with two charges relating to one of the four complainants, hence the retrial relates to 13 charges and three complainants.

7 The first endeavour to retry the applicant occurred in April 2013. As a result of prejudicial comments uttered by SK, however, the jury was discharged without verdict.

8 A second attempt to retry the applicant occurred in July and August 2013. Again, however, the trial was aborted as a result of prejudicial evidence being given by SK.

9 So as to avoid the risk of a third trial being aborted, on application by the prosecution - opposed by the defence - on 3 March 2014 the judge resolved to have SK's evidence pre-recorded and then edited (to the extent required), so that it could be played to the jury empanelled for the third attempted retrial.[6] The pre-recording of SK's evidence took place on 21 and 22 July 2014. No issue has arisen as to the admissibility of the pre-recorded evidence.

10 On 4 September 2014, counsel for the applicant sought a permanent stay from the trial judge of charges 1 and 2, relating to SK. Counsel submitted that the prosecution could not adequately particularise the events that are said to form the basis for those charges. The reason for that, counsel argued, is that the complainant herself cannot describe the relevant acts from her memory as a separate and identifiable occasion, as opposed to from a memory that amounts, in effect, to a 'conglomeration' of different events. Thus, counsel contended, SK's evidence is no more than what would ordinarily constitute evidence of 'uncharged acts'. For that reason it is not appropriate to proceed further with charges 1 and 2, since there is no legitimate basis on which the prosecution could ever prove its case on those charges.

11 The prosecution opposed the application for a permanent stay. They submitted that they are in a position, based on SK's pre-recorded evidence, to adequately particularise the incident and the events that form the basis for those two charges. The prosecution did not accept that SK described a 'conglomeration of events' in her evidence.

The learned trial judge erred in failing to stay the trial as an abuse of process.

PARTICULARS

1. The learned trial judge erred in deciding the counts under consideration were sufficiently particularised.
2. Accordingly, it was not open to conclude that the Applicant would receive a fair trial.

13 In his reasons refusing the application for a permanent stay, the judge acknowledged that ordinarily the basis for the application would form the foundation of a submission of no case to answer at the close of the prosecution case, since usually it is only then that the full evidence of the complainant will be known and be capable of assessment in the context of all of the other evidence in the trial. In the peculiar circumstances of the present case, however, the judge thought it proper to entertain the application for a stay for three principal reasons. First, SK's evidence is 'already in', so that there is no uncertainty about the precise nature of the evidence that the jury would hear. SK's evidence is 'complete and will not change'. Secondly, SK's evidence will not be affected in any significant way by any evidence that is likely to be adduced by the prosecution at the forthcoming trial. On her version, there were no witnesses to what the applicant did to her. Thirdly, the anticipated trial will be a joint one so far as the charges relating to all three complainants are concerned. SK's evidence, and part of the evidence of one of the other complainants, has previously been ruled to be cross-admissible on the basis of coincidence. Thus, were the defence to leave any application regarding SK until the close of the prosecution case - and it succeeded - then the jury would likely have to be discharged without verdict in relation to the charges relating to the other two complainants, as they would have heard the inadmissible evidence of SK in circumstances that would give rise to an incurable prejudice against the applicant.

14 In his reasons refusing the permanent stay sought by the defence, among other things the judge said:

Based on the entirety of the evidence that the witness has given, as assessed against the background history of her allegations, I am satisfied that it is well open to the prosecution to invite the jury to conclude that [SK] has a distinct memory of the two acts on which the charges are based, in circumstances where she can provide the necessary particularisation required by the law. It would be open to the prosecution to ask the jury to find that [SK] is, from her memory, accurately describing one occasion rather than a mixture of occasions, during which the alleged acts occurred.

Whether the jury ultimately accept the prosecution's submission will be a matter for them. It is, in my view, quintessentially a question for the jury in the particular circumstances of this case.

Of course, it will be open to the defence to make submissions to the jury in which they urge them to find that the prosecution cannot exclude the conglomeration scenario.

15 For reasons that we will expand upon, in our view his Honour was correct in his assessment of the evidence. And we note that the trial judge went on to say:

In the course of my directions to the jury, I propose to give them a very clear and firm direction of the need for the prosecution to exclude such a scenario, and of the duty of the jury to acquit the accused of both charges if the prosecution fail in that regard. As part of that direction, I will make reference to the relevant evidence and to the parties' respective arguments.

16 A court should stay an indictment if, in all the circumstances, 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.[7] Further, a permanent stay of a charge on an indictment might be granted if the charge is foredoomed to fail.[8]

17 In this Court, the applicant submitted that, as it stands, SK's evidence cannot be related to a specific offence upon an identified occasion, and, therefore, the applicant is precluded from testing SK's credit by reference to surrounding circumstances. Further, so it was submitted, the prosecution cannot exclude on the criminal standard that the charged events are not a 'conglomeration' from a series of events.

18 For its apart, the respondent submitted that there is no latent duplicity, and that the level of particularisation is 'more than adequate'.

19 In our view, the applicant's submissions must be rejected. It is plain from SK's evidence-in-chief that she is describing 'a particular incident'. She was asked 'specifically about the incident', and asked to describe the events when 'this incident took place'. SK then described an event that occurred at night time, in the applicant's bedroom, after his wife and SK's mother had left the house. She described an event when the applicant licked her vagina and then, her 'impression' was, tried to insert his penis into her vagina. SK said she remembered the events 'distinctively'; and she described events both before, and after, the sexual episode with some particularity. Our very strong impression from reading the transcript of her evidence-in-chief is that she purports to describe a single episode, rather than a melange of different incidents.

20 Counsel for the applicant principally focused on two passages from SK's cross-examination, which, he submitted, demonstrated the vices for which he contended. The two passages represented were the highpoints of counsel's submissions. First, counsel relied on a portion of cross-examination which had followed questions concerning SK having been sexually interfered with by another man, 'Simpson':[9]

No but my question is this: did you, at that time, when you made allegations against Simpson, did you make any allegations against [the applicant]?---No.

Why not?---Because it was about Simpson at the time, sir.

No, no, but why limit it to Simpson ---?---Because my mum was pregnant and about to have a baby to this man and I - this man had been doing it to me for four and a half years. [The applicant], I don't even know how many times he'd done it to me. I only remember flashbacks. That's what I'm here for today sir, is to be here and just what I remember. To tell the truth of what I remember. _With [the applicant], it was only a one occasion that I remember or it could have been many occasions all mixed up in those bits and pieces that I remembe_r but I distinctively know that that's what [the applicant] done. ... Mr Simpson had me for a longer period of time. It was over a period of four and a half years, sir.

Yes look---?---[The applicant] is only one occasion ... That I remember.

21 The second passage relates to SK describing blood on her underwear following an attempt at penile-vaginal penetration by the applicant:

Can you think of how the blood would have got there?---I don't know, Your Honour.

You don't know?---No. That was the reason to my evidence in making the statement because I didn't know if it happened to me numerous amounts of times or not. I just remembered flashbacks so whether that was one particular night or over a series, I just remember what I remember.

I'm not sure---?---And that was that particular night. I can't go on anything else so I don't know how the blood that was there on my underwear, sir, no.

What you're saying is that you certainly say that there was blood on your underwear?---Yes and that - the incident actually did happen sir.

22 In our opinion, looking at her evidence overall - and giving it a fair reading - it would be open to a reasonable jury to conclude that SK has a distinct recollection of a particular occasion when the applicant licked her vagina and then attempted to penetrate her vagina with his penis. Indeed, it seems to us that the jury might well interpret the burden of SK's evidence in the two passages relied upon by the applicant as being an affirmation that she has a distinct memory of one particular incident, albeit that it might have been one of a series of such incidents.

23 There is, in our opinion, no substance in the claim made that the continued prosecution of charges 1 and 2 will constitute an abuse of process because of insufficient particularisation. Any potential unfairness is capable of being - and, we trust, will be - ameliorated by directions from the judge that the prosecution case must fail if they can do no more than prove that SK's evidence represents a 'conglomeration'.

24 The applicant's submissions are bereft of merit. Leave to appeal must be refused.

25 We should add this. The submissions before the trial judge seemed to have been confined in the manner that we have discussed. It emerged during the course of oral argument in this Court, however, that there may be live issues - yet unresolved by his Honour - as to the admissibility of evidence of surrounding circumstances or uncharged acts. In particular, the judge has not yet distinctly been asked to rule upon the admissibility of SK's evidence of observing blood on her underpants. If the prosecution seek to lead that evidence as an incident of the charged acts, or, alternatively, to lead it as an uncharged act - and objection is taken - his Honour will have to resolve those issues. Those questions did not, however, arise on this application for our determination.

[1] Criminal Procedure Act 2009, s 295(3).

[2] Criminal Procedure Act 2009, s 297(1).

[3] Crimes Act 1958, s 44(1).

[4] Crimes Act 1958, s 47(2).

[5] RJP v The Queen (2011) 215 A Crim R 315.

[6] Criminal Procedure Act 2009, Part 8.2, Division 7 (ss 378 to 387).

[7] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 392 (Mason CJ, Deane and Dawson JJ). See also Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23; R v Glennon [1992] HCA 16; (1992) 173 CLR 592; Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237; R v Edwards [2009] HCA 20; (2009) 255 ALR 399.

[8] R v Smith & Ors [1995] VicRp 2; [1995] 1 VR 10. (Although the decision was later overturned by the High Court in Smith & Ors v R [1994] HCA 60; (1994) 181 CLR 338, that was because it was held that the Full Court had held no power to entertain an appeal by the Crown against the trial judge's decision to grant a stay. The principles upon which the Full Court purported to decide the case were not, however, put in doubt.) See also R v Leece (1996) 65 FCR 544, 554-557 (Gallop and Hill JJ); R v Petroulias (No 1) [2006] NSWSC 788; (2006) 217 FLR 242, 262-266 [71]-[85] (Johnson J); R v McGee & McGee [2008] SASC 328; (2008) 102 SASR 318, 341-344 [80]-[90] (Doyle CJ), 377 [243]-[243] (Gray J), 386 [291]-[292] (White J); R v Azad & Anor [2007] VSC 115, [20]-[23] (Curtain J); DPP (Cth) v County Court of Victoria & Anor [2010] VSC 157; (2010) 239 FLR 139, 155-156 [61]-[62](Forrest J); Nelson (a Pseudonym) v The Queen [2014] VSCA 217 R, [6]-[11].