Shannon (a Pseudonym) v the Queen [2019] VSCA 27

2 The applicant sought a permanent stay of the indictment on the basis that a number of factors would render any trial of the charges unacceptably unfair. Among those factors are the death of important witnesses; the absence of crucial medical, employment and motor registration records; the inability to locate witnesses; and the applicant's failing memory.

3 On 12 July 2018, the trial judge refused to stay the indictment (the 'ruling' or the 'interlocutory decision').

4 Pursuant to certification granted by the trial judge, the applicant seeks leave to appeal against the ruling on the following ground:

The learned judge erred in law in failing to find that, by reason of lapse of time, the death of witnesses, the absence of relevant records and the applicant's loss of memory, it was not possible for the applicant to receive a fair trial.

5 In our opinion, for the reasons that follow, leave to appeal must be refused.

6 The case that the prosecution seeks to maintain against the applicant is set out in writing in the Summary of Prosecution Opening:[5]

1. At the time of these offences, the [applicant] (born 7/8/1938) was 36 and lived in Beaumaris. He worked in an [sic] insurance Sales with Prudential Insurance. He was also trained as a nurse. He also owned a light green Morris 1100 or similar.
2. The complainant is ['JL']. At the time of these offences she was 16. She lived with her family on a dairy farm in Port Arlington and was in form 5 at a High School in Geelong.
3. The complainant had an Uncle named ['HRL'] (now deceased), known as [sic] and an Aunt, ['LL'] (witness). They lived in Beaumaris.
4. The [applicant] and [HRL] were friends, through their involvement with the Beaumaris soccer club.

1. On a week day in May 1975, the complainant went to stay overnight at her Aunt and Uncle's house in Beaumaris.
2. The complainant was planning to spend just one night with her Aunt and Uncle ([HRL] and [LL]). She was wearing her school uniform. She carried little more than a change of socks and underwear in her school bag.
3. That afternoon, the [applicant] visited the Beaumaris address and was introduced to the complainant.
4. The complainant recalls that the [applicant] had an accent like someone from the United Kingdom. He talked about being a nurse as well as his job with Prudential insurance.
5. As a result of the [applicant] commenting on her pale appearance, a discussion took place with both the [applicant] and [LL] present, about her health. The complainant revealed worries about her health and troubles with her menstrual period. The [applicant] advised she should go to bed. When [LL] was not present, the [applicant] gave the complainant 2 tablets.
6. The complainant went to bed in a bedroom in the house and fell asleep.

1. The complainant awoke and the [applicant] was in the room. He rolled her onto her back and penetrated her vagina with more than one finger. The [applicant] stopped when [LL] walked past the open door. The [applicant] then left the bedroom and the complainant did not say or do anything.
2. The following day, [LL] took the complainant to see a doctor about her menstruation concerns.
3. When they returned in the car, the [applicant] was waiting at the Beaumaris house. He offered to take the complainant with him as he was visiting clients in the country and it would be an outing and a change for the complainant.
4. [LL] reluctantly agreed to allow him to take the complainant.
5. The complainant recalls that the [applicant's] car was a light green Morris 1100 with bucket seats.
6. She got into the car. When the [applicant] got into the car he put more tablets in her mouth and told her swallow. She did as she was told as he was a nurse.
7. The [applicant] drove the car with the complainant sitting in the passenger seat until he reached a dirt track and stopped.

1. The [applicant] put his arm around the back of the complainant's seat as if he was going to reverse and grabbed the complainant's right hand and, by holding it, forced her to touch his penis and rub it up and down. When she resisted, the [applicant] became angry.

1. The [applicant] instructed the complainant to remove her kilt (school uniform) and underwear. The [applicant] moved into the back seat of the car and reclined the seat that the complainant was sitting in. He then swung the complainant around, 'jammed' his penis in her vagina and forcibly had sex with her. The complainant was screaming and crying when he did so. The [applicant] placed a cloth in her mouth to stop her screaming and held fast her arms so that she could not move. She was in fear and let the [applicant] 'get on with what he was doing'.
2. The [applicant] made the complainant promise she would not tell anyone what had just happened.
3. When the complainant returned [to] her Aunt and Uncle's home, there were a number of people in the house for a meeting of the Beaumaris Soccer club.
4. The complainant spoke to [LL] alone and told her that the [applicant] had had sex with her and also about him having put his fingers in her vagina the night before.
5. [LL] was angry and made everyone, save for the [applicant], leave the house. She spoke to the [applicant] in the presence of the complainant and [HRL].
6. The evidence of [LL] and the complainant about what followed will differ slightly.
7. In essence the complainant will give evidence that:

1. [LL] recounted that she had just been told by the complainant that of the promise not to tell that she had been raped by the [applicant]; 2. [LL] demanded to know if he (the [applicant]) had had intercourse with the complainant;

1. [LL] wanted to know if he had interfered with the complainant the night before; 2. The [applicant] (nodding) admitted that he had; 3. The [applicant] had said that he did it 'Because I thought she was a nice girl and my wife has been working night duty'; 4. The [applicant] was bundled out of the house by [HRL]; 5. [LL] took her to see a Dr Watkins the next day; 6. The complainant was counselled by her Aunt that the less said about the matter the better; 7. Neither she nor her Aunt told anyone else about the matter; 8. She has never seen the [applicant] again.
2. [LL] will give evidence, in essence that:

1. She had been told by the complainant that 1. 'I think he had sex with me'; and 2. She'd been given a tablet by the [applicant]; and 3. That she was very groggy; and 2. (When everybody else left) She ([LL]) asked the [applicant] 'Why did you do this, we trusted you, she's in a school uniform for god's sake?'.

1. The [applicant] had said something peculiar like 'because she's a good girl' and may have apologised.

1. [LL] had demanded that he leave. 2. [LL] took the complainant to a Dr Watkins (now deceased) the next day. 3. She was prevented by her late husband from taking the matter to the police.

1. The complainant reported the matter to the police on 13 May 2013 and subsequently made a statement on 25 November 2014.

1. On 25 March 2015 police conducted a record of interview with the [applicant].
2. During the course of the ROI, the [applicant] admitted that:

1. He lived in Beaumaris in 1975 (Q16); 2. He was a trained nurse (Q180);

1. In 1975 he was involved in the Beaumaris soccer club (Q41);

1. Meetings were held at different peoples' houses (Q47); 2. He knew [HRL] through the soccer club (Q52-54); 3. He had been to [HRL's] house (Q57).
2. He could not recall:

1. Owning a Morris (Q79); 2. Working for an Insurance company (Q90-96);

1. [HRL's and LL's] niece or anyone called [names of complainant] being at their house (Q86-89).

7 The prosecution has indicated that it intends to lead evidence that LL took the complainant to see Dr Watkins the day after the complaint was made to her, and that a complaint was also made to the doctor. Significantly, however, the prosecution no longer seeks to lead evidence from the complainant and LL that Dr Watkins examined the complainant and found vaginal bruising. Nor does the prosecution intend to lead evidence (set out in LL's police statement) that Dr Watkins asked to see the applicant and then treated him on a regular basis.

8 In submitting that the trial judge should grant a permanent stay, the applicant's counsel submitted that the delay in this case - 43 years - is a delay of considerable magnitude and, as was the case in Bauer[6] (albeit the delay in that case was 46 years) can be described as exceptional, leading to the same prejudicial effect as highlighted in that case.[7] Thus, the evidence of LL is that the complainant's contemporaneous complaint was 'I think he had sex with me', the applicant having given her 'a drink or tablet or something'. The complainant also said 'she was very groggy'. Her statement to police, however, made some 40 years later, contains graphic detail making the contemporaneous complaint and the ultimate statement 'unrecognisable' one to the other.

9 Counsel for the applicant submitted that not only does the delay in this case give rise to presumptive prejudice, but specific prejudice is engendered by the loss of evidence.

10 First, the complainant's uncle, HRL, has died. He allegedly witnessed the complainant getting in the car with the applicant; was present in the room when the members of the soccer club were asked to leave before the allegations were put to the applicant; and heard the applicant's alleged admissions.

11 Secondly, Dr Watkins is deceased and none of his clinical records exist. Thus, neither he nor his records can speak as to his physical examination of the complainant; his speaking to the applicant about the alleged offences; or his apparently on going 'treatment' of the applicant.

12 Thirdly, records concerning the applicant's employment are unavailable. The complainant and LL both state that the applicant was a nurse at the time of the alleged offending - in the month of May 1975 - yet the applicant made clear in his record of interview that he was no longer nursing. Lack of employment records mean that he cannot establish exactly where he was working at the time of the alleged offending. The records would have thrown light on his movements and activities in May 1975.

13 Fourthly, there are no motor vehicle registration records available for May 1975, making it impossible to test the complainant's account relevant to charges 2 and 3.

14 Fifthly, due to effluxion of time, members of the Beaumaris Soccer Club - who were allegedly asked to leave the premises shortly before the applicant was confronted with the allegations - are unable to be located.

15 Finally, as is demonstrated by the applicant's answers in the record of interview, his memory is failing.

16 The prosecutor acknowledged that the delay of 43 years is 'substantial', but submitted that it is not the delay of itself that is important, but rather the actual forensic disadvantages occasioned by the delay. There are, it was contended, insufficient grounds to justify the exceptional remedy of granting a permanent stay, any unfairness found to be occasioned by the delay being capable of acceptable mitigation by appropriate directions to the jury. Whilst the delay in this case is indeed long, the prosecutor submitted, it cannot be described as 'exceptional' in 'historic sexual cases such as this'. There is a great public interest in the prosecution and conviction of the guilty, even if delayed.

17 With respect to HRL, the prosecutor noted that he was not an eye-witness to any of the offending; and, although he was a witness to the applicant's alleged admissions, evidence of the admissions will be led from both the complainant and her aunty. The applicant's lost opportunity to cross-examine HRL creates no unacceptable prejudice, since it is a matter of complete speculation as to what he might have said (or not said). This is not a case where actual or known evidence of the witness has been lost.[8]

18 As to Dr Watkin's alleged finding of vaginal bruising upon examination of the complainant, the prosecutor submitted that the applicant will not be denied the opportunity to cross-examine the complainant or her aunty about the complaint made to the doctor, or the doctor's findings. Once more, so it was submitted, it is complete speculation as to what, if anything, the doctor's records would have revealed, or what, if anything, the doctor would have said. The applicant has merely lost the opportunity to ask the doctor about these matters.

19 With respect to the applicant's employment records, the prosecutor submitted that it is not known what records would have been available had the matter been reported earlier, or what those unknown records would have revealed. Whether the applicant was working as a nurse or otherwise is, at best, general contextual evidence. It can hardly be described as critical. In any event, the prosecution does not necessarily assert the applicant was working as a nurse at the particular time, relying on the complainant's evidence that she heard the applicant describe himself to LL as a male nurse. It was submitted that any prejudice flowing from absent records may acceptably be ameliorated by a forensic disadvantage direction.

20 Having summarised the prosecution case, the judge set out the principles in Bauer,[9] and passages from FJL[10] and Hermanus[11] there cited. Her Honour then set out the contentions of the applicant's counsel and the prosecution's submissions in response. The judge then set out her conclusions which, with respect, contain little analysis:

The hurdle to be cleared by the accused here is a high one. It is incumbent upon him to establish his case is an exceptional one, such that a permanent stay is the only remedy to prevent an abuse of process.

Bearing in mind that test, he has failed to establish that his case is indeed exceptional. None of the matters raised on behalf of the accused, either individually or collectively, lead to the inevitable conclusion that any trial that will ensue will be unacceptably unfair.

I therefore decline to grant a permanent stay of the Indictment.

21 Save that the applicant's counsel referred to additional authority beyond Bauer, FJL, Hermanus and Jones,[12] the submissions of the applicant's and respondent's counsel in this Court largely recapitulated what had been agitated before the trial judge. Counsel for the respondent[13] confirmed that the prosecution will not attempt to lead evidence that Dr Watkins had examined the complainant and found vaginal bruising, or that Dr Watkins asked to see the applicant and then treated him on a regular basis. Further, counsel for the respondent informed the Court that the prosecution would not seek to lead evidence at trial that Dr Watkins had said that he intended to call the police, but that LL asked him not to do so. Beyond these matters, counsel generally relied on his written contentions, which largely reflected the submissions that he made to the trial judge.

22 The principles that guide a court in determining whether or not to grant a stay were set out in Hermanus.[14] It is unnecessary to repeat them.

23 We would, however, repeat some further observations made in Hermanus, which are apposite to the present case:[15]

There will always be difficulties for an accused person in mounting an effective defence after a delay of the order in this case. A number of the difficulties that will inevitably be encountered were identified by Nicholson J in Jacobi[16] (a case where the delay was between 25 and 36 years):

The appellant will face the problems inherent in meeting allegations about events said to have occurred many years ago, involving quite young children. These problems include:

• the reliability or the accuracy of a complainant's recollections about which evidence is given so many years after the events;
• the difficulty confronting a trier of fact when assessing the veracity and reliability of a person, not by hearing and observing their evidence given when young, soon after the events are said to have taken place and with the child's contemporary language and understanding but after hearing and observing evidence given in the language of an experienced adult with all of the possibilities of reconstruction and re-interpretation that this entails;
• the difficulty confronting the appellant having to go well back in time to recall, check and verify the accuracy of events about which evidence is given; and
• the difficulty confronting the appellant in endeavouring to obtain and produce documentary evidence or oral evidence from other witnesses which might put in question the evidence of a complainant as to events, times and places.

These problems confront any accused person who wishes to defend historical child sex allegations and are inevitable where there is significant delay in the bringing of a prosecution. ...

I sympathise with the notion 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. Indeed, nobody experienced in trials involving allegations of 'historical' sexual offences could fail to sympathise with that view.[17] 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.[18]

The law contemplates, however, that even in cases of very long delay, it remains 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. So much underpinned the High Court's reasoning in Longman;[19] and so much must underpin the Legislature's provision for forensic disadvantage warnings, as provided for in s 61 of the Crimes Act 1958 and s 165B of the Evidence Act 2008.[20], [[21]]

24 It cannot be gainsaid that the delay in this case is very considerable. That factor of itself, however, does not inevitably lead to the conclusion that a trial concerned with events more than four decades distant will necessarily be unacceptably unfair. Before a permanent stay can be justified, there must be a fundamental defect which goes to the root of the trial of such a nature that nothing that the trial judge can do in the conduct of the trial can ameliorate its unfair consequences. The critical factors which must be balanced are on the one hand the proven or likely prejudice to the applicant, and on the other, the public interest in the prosecution and conviction of the guilty. It is the probability of unacceptable unfairness that is critical, rather than the possibility of such unfairness.

25 In the present case, the applicant relies on several factors beyond the presumptive prejudice flowing from the effluxion of time in order to found the contention that there is specific prejudice that arises justifying a stay.[22] In our view, none of the factors alone or in combination lead inexorably to the conclusion that the applicant's proposed trial will be attended by unacceptable unfairness. We turn to those factors.

26 First, so far as the complainant's uncle, HRL, is concerned, this is not a case where actual or known evidence has been lost.[23] At best, the applicant has lost an opportunity to cross-examine HRL, in circumstances where the applicant is unable to offer even informed conjecture as to what his evidence might have been. One is incapable of predicting whether his evidence would have supported or controverted the evidence of the applicant's alleged admissions (although, on the assumption that he had any relevant recollection, it might be speculated that his evidence would have done one or the other). The inability to produce any evidence from HRL is readily capable of being addressed by a suitable forensic disadvantage direction.

27 Secondly, the absence of Dr Watkins (and his records) occasions little prejudice to the applicant. The prosecution has abandoned those aspects of LL's and JL's engagement with Dr Watkins that may have engendered unacceptable prejudice to the applicant's case. What is left is the mere fact of a complaint, which does not add much (if anything) to the other evidence of complaint. Once more, the absence of Dr Watkins (and his records) is capable of being dealt with by an appropriate direction.

28 Thirdly, we regard the loss of the applicant's employment records as of dubious relevance. It does not appear to be disputed that the applicant had at one time been a nurse. JL allegedly heard the applicant describe himself to LL as a nurse, but whether the applicant was actually working as a nurse or not in May 1975 does not much matter. At best, the applicant's employment records could only have supplied general context. Again, any prejudice flowing from their absence may be alleviated by judicial direction.

29 Fourthly, although it may be accepted that motor registration records may have shed some light on whether the applicant owned a light green Morris 1100 with bucket seats in May 1975, any conclusion as to whether such records would have advanced or diminished the prosecution or defence cases dwells in the realm of speculation. There is, however, evidence from the applicant's son that the applicant had a 'light olive green' Austin in 1975 - it looked like 'an oversized Morris' - which is capable of being tested in cross-examination. In our view, any prejudice flowing from the absence of any registration records is another aspect that is amenable to amelioration by direction.

30 Fifthly, whether any member of the Beaumaris Soccer Club might have been capable of contradicting (or, for that matter, supporting) the evidence that they were asked to leave HRL's and LL's residence after JL disclosed the applicant's sexual offending against her is incapable of prediction. An appropriate direction will cure any suggested prejudice.

31 Finally, although it may be accepted that the relevant delay has a bearing upon the applicant's memory and his ability to muster his defence, we consider that any prejudice flowing from that facet is readily amenable to mitigation by a firm forensic disadvantage direction. This is not a case like Littler,[24] where there is medical evidence establishing that the applicant has a failing memory.

32 Given that the decision to refuse a permanent stay is discretionary, this Court could only intervene in the present case if persuaded that the primary judge had fallen into error in the House[25] sense.[26] In light of the foregoing, we are unable to detect any error in the trial judge's reasoning. We do not regard it to be reasonably arguable that her Honour acted upon a wrong principle; allowed extraneous or irrelevant matters to guide or affect her; mistook the facts; failed to take into account some material consideration; or that her decision is unreasonable or plainly unjust.

33 For these reasons, leave to appeal must be refused.

[1] To ensure that there is no possibility of the identification of the victim of sexual offending, and so as to prevent any risk of prejudice to the proper administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] Contrary to s 55(1) of the Crimes Act 1958 (as amended by the Crimes (Amendment) Act 1967).

[5] Footnote references to the depositions have been omitted.

[6] Bauer (a Pseudonym) v The Queen [2015] VSCA 55; (2015) 46 VR 382 ('Bauer').

[8] Counsel cited Jones (a Pseudonym) v The Queen [2017] VSCA 111, [69] (Whelan and Ferguson JJA and Kidd AJA) ('Jones').

[9] Bauer, 399-402 [94]-[96] (Priest JA).

[10] R v FJL [2014] VSCA 57; (2014) 41 VR 572, 575-7 [17]-[26] (Osborn JA, Redlich JA and Sifris AJA agreeing) ('FJL').

[11] Hermanus (A Pseudonym) v The Queen [2015] VSCA 2; (2015) 44 VR 335, 341-3, [39]-[41] (Priest JA) ('Hermanus').

[12] Green (a Pseudonym) v The Queen [2017] VSCA 277 (Priest, Kaye and Coghlan JJA); Brewer (a Pseudonym) v The Queen [2017] VSCA 117 (Maxwell P, Kyrou JA and Croucher AJA); and Martin (a Pseudonym) v The Queen [2017] VSCA 328 (Weinberg, Whelan and Kyrou JJA) ('Martin').

[14] Hermanus, 341-3 [39]-[41] (Priest JA).

[15] Ibid 343-4 [42]-[44] (footnotes as in report). See also Carson (a Pseudonym) v The Queen [2019] VSCA 4, [15].

[16] R v Jacobi (2012) 114 SASR 227 at 253, [104]-[105]. See CT v R [2014] NZSC 155 at [13] per Elias CJ, McGrath and William Young JJ. See also Lewis, "A comparative examination of forensic disadvantage directions in delayed prosecutions of childhood sexual abuse", (2005) 29 Crim LJ 281, 281-2.

[17] See Longman v R [1989] HCA 60; (1989) 168 CLR 79 ("Longman") at 91 (Brennan, Dawson and Toohey JJ). Cf Cossins, "Time Out for Longman: Myths, Science and the Common Law"[2010] MelbULawRw 3; , (2010) 34 MULR 69.

[18] See Longman at 107-8 (McHugh J). See also Rowan QC, "Old Allegations of Sexual Abuse", [2006] NZLJ 302.

[20] An examination of the two sections, and the reasons for their enactment, may be found in Greensill v R [2012] VSCA 306; (2012) 37 VR 257 at 265-71, [38]-[53].

[21] See now Jury Directions Act 2015, s 39.

[22] See [10]-[15] above.

[24] R v Littler [2001] NSWCCA 173; (2001) 120 A Crim R 512. See also McDonald v The Queen [2016] VSCA 304; (2016) 263 A Crim R 356.

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