Snyder (a pseudonym) v The Queen [2021] VSCA 96

49 Counsel also submitted that the judge was wrong to conclude that the jury would not give the evidence more weight than it deserved. As the prosecution acknowledged, there was significant forensic disadvantage arising from delay. Additionally, EW's account at the committal was confident, in circumstances where the dangers attaching to witnesses providing accounts which are honestly and confidently given are well known to the law. And since this case alleges sexual offending against a child, there is already a danger of the jury's decision-making being compromised by emotional responses. Moreover, in this case it will be impossible to mount any real defence without the jury being aware of the applicant's unrelated prior offending (which will undoubtedly provoke the jury's revulsion).

50 Amplifying the prejudicial effect of the evidence, counsel submitted, the jury likely will know that EW died after years of significant psychiatric issues, some of which related to her beliefs about the applicant. There is thus a palpable danger that the complainant's psychiatric history will be viewed as corroborating her claims.

51 The applicant's counsel took issue with the judge's finding that EW's cross-examination at committal was detailed and competently executed. By and large, it consisted of a non-leading invitation for the complainant to provide a narrative account. No aspect of the applicant's record of interview was put, and the 'improbability' of EW's account was not tested. In any event (and significantly), relevant disclosure - highly relevant to the credibility and reliability of EW's account - only arose after the committal. It is chimerical to suggest, as the judge did, that there may be some potential forensic benefit to the applicant in being deprived of the opportunity of testing the complainant's evidence.

1. In combination, counsel submitted, the factors adverted to create a danger of unfair prejudice that is not readily amenable to amelioration by judicial direction.

53 Finally, counsel submitted that - quite apart from the fact that, based on the contents of the Phelan notes, charges 1 to 32 are foredoomed to fail - the proceedings against the applicant should be permanently stayed since a number of circumstances in combination dictated the conclusion that he could not be tried without unacceptable unfairness. Whilst accepting that a permanent stay of proceedings is an exceptional remedy, counsel submitted that 'cumulative circumstances of unfairness' relied upon in order to exclude the evidence also support the proposition that continuation of the trial would be unacceptably unfair such that it would constitute an abuse of process. Hence, it was not open to the judge to reject the application for a permanent stay.

54 The respondent submitted that, 'taken at its highest', the impugned evidence 'is highly probative', being 'direct evidence by the complainant of offending against her by the applicant'. In that regard, it was open to the judge to find that EW's evidence was supported by surrounding circumstances.

55 While on the one hand acknowledging that 'there is prejudice to an accused by virtue of the inability to cross-examine the complainant', the respondent on the other hand contended that there is a forensic advantage to having Professor Thomson's and Dr Sullivan's reports before the jury 'without the need (or ability) to cross-examine the complainant about them'. The respondent submitted that s 137 is concerned with 'unfair prejudice', but not every disadvantage in the case amounts to unfair prejudice. It is a matter of forensic judgement for the applicant, so the respondent submitted, 'how much of that material goes before a jury'; and, in any event, the jury will be directed 'not to act on the basis of prejudice'. Further, so the respondent submitted, the judge was correct to find that the cross-examination of EW was 'was detailed and competently executed'.

56 Given these matters, the respondent submitted, the judge was correct not to exclude the evidence under s 137 of the Act or pursuant to the Haddara discretion.

57 Finally the respondent submitted that since (apart from delay) the applicant 'did not rely on anything over and above the matters raised in support of his application for exclusion of the evidence', there was no basis for the trial judge to find grounds for a permanent stay.

58 The first proposed ground contends that the trial judge erred in refusing to exclude the evidence of the representations contained in EW's statements and committal evidence under s 137 of the Act.

59 Section 137 provides:

137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

60 The Dictionary to the Act defines 'probative value' to be 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'. Assessing the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue requires that the possible use to which the evidence might be put be taken at its highest.[23] Although other sections of the Act assign a quality to the probative value contemplated by the particular provision, s 137 does not spell out the requisite probative value,[24] simply requiring the probative value of the evidence to be weighed against the danger of unfair prejudice to the accused. In providing that probative value is to be weighed against the danger of unfair prejudice, however, s 137 does require that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue.[25]

61 Quite clearly, in our view, the evidence of EW's representations contained in her statements and committal evidence is highly probative. Her evidence was detailed and specific. If accepted by a jury as truthful, credible and reliable, it would establish the applicant's guilt on each charge in the indictment.

62 We do not accept the contention advanced by the applicant's counsel to the effect that, because of background circumstances that impinge on the accuracy of her memory, the evidence of EW's representations is of limited probative value. That contention is, we consider, at odds with IMM, in which, as we have said, it was made clear that the assessment of the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue requires that the possible use to which the evidence might be put be taken at its highest.[26] The caveat to that proposition - that the circumstances surrounding the evidence may indicate that if the probative value of the evidence, at its highest level, is not very high - is applicable to the particular circumstances of the witness and to his or her perception of the matter to which the evidence relates. Thus, a purported identification briefly in foggy conditions in bad light is inherently unreliable, so that, taken at its highest, the probative value of that evidence is not very high at all.[27]

63 There was nothing in the circumstances in which they occurred which may have adversely affected EW's perception of relevant events. She provided detailed representations concerning sexual activity in which she was directly involved. Thus, taken at its highest, the probative value of her representations is high. Issues relating to the quality and nature of her memory are directed to the reliability (and possibly credibility) of EW's representations, and are not the kind of circumstances recognised in IMM - an observation made very briefly in foggy conditions and in bad light - that would compel a conclusion that the probative value of the evidence is weak.

64 Despite the high probative value of the evidence, however, the applicant contends that its probative value is outweighed by the danger of unfair prejudice to the applicant. In essence, the danger of unfair prejudice arises because there is a real danger that the jury will give the evidence more weight than it deserves. At the risk of repetition, it seems to us principally that seven propositions may be distilled from the applicant's submissions:

• first, the expert evidence establishes the risk that EW's memory - and therefore her evidence - was contaminated;

• secondly, EW's evidence appears to be confident, in circumstances where there is no necessary correlation between confidence levels and reliability;

• thirdly, the true extent of EW's psychiatric condition was not disclosed until the relevant records were made available after committal, preventing any meaningful cross-examination of her;

• fourthly, it will be impossible to mount any real defence without the jury being aware of the applicant's unrelated prior offending, which the jury will find to be rebarbative;

• fifthly, the prejudicial effect of the evidence will be increased by the jury knowing that EW died after years of significant psychiatric issues, some of which related to her beliefs about the applicant (EW's suicide being used by the jury as a form of corroboration);

• sixthly, EW's cross-examination at committal was not competent, in that it brought out material unfavourable to the defence whilst at the same time failing to elicit favourable evidence; and

• seventhly, given that the evidence relates to sexual offending against a child, there is already a danger of the jury's decision-making being compromised by emotional responses.

65 In our view, the evidence of Professor Thomson and Dr Sullivan is capable of addressing the first, second and third propositions referred to immediately above, and ameliorating any unfair prejudice that might be said to flow from them. Hence, both experts will be able to educate the jury on the risks of memory contamination, and Professor Thomson's evidence will make plain that there is no necessary correlation between EW's confidence in her purported recollections and the objective reliability of her memories. It is undeniable that a lack of pre-committal disclosure prevented the experts from providing a competent cross-examiner with fertile lines of cross-examination profitable to the defence. But, assuming he will give evidence at trial, Dr Sullivan will be able to identify for the jury's benefit the types of questions which might have been asked of the complainant, and which might have shed light on whether her evidence was the product of reliable memory, or whether it has been the product of confabulation, distortion or misinterpretation, produced or promoted by aspects of EW's intervening mental ill-health. We would add that the issues discussed by Professor Thomson and Dr Sullivan are directed principally (if not wholly) to the reliability of the EW's memory, as distinct from the truthfulness and the credibility of the contents of her statements and her evidence at committal. Accordingly, it is doubtful that the inability of counsel for the applicant to cross-examine the complainant on any aspect of the opinions expressed by the expert witnesses could realistically be seen to be a disadvantage to the applicant at trial.

66 With respect to the fourth proposition, the applicant has a problematic forensic choice to make. In the ordinary course - given that the prosecution does not seek to rely on the applicant's earlier unrelated offending to establish tendency or coincidence - the fact that the applicant had convictions for sexual offences against other children would not be admissible in the pending trial involving EW. If, however, the applicant wishes to challenge the credibility and reliability of EW's evidence on the basis that her memory may have been contaminated by having had access to the details of the applicant's offending in other cases - it is difficult to imagine how he might sufficiently challenge EW's evidence without referring to his previous offending - he must bear the concomitant risk of prejudice from so doing. Plainly, reference to his previous offences against children will be particularly prejudicial. Although it might be expected that appropriate directions to the jury should, at least to a material extent, offset that prejudice, it is difficult to conceive that a jury's perception of the evidence overall would not be tainted by its knowledge of the applicant's other offending. Nonetheless, it will remain possible for the applicant to present a viable defence without introducing evidence of the fact that the complainant had resorted to information contained in another case concerning the applicant.

67 As to the fifth proposition, the sad but simple fact is that the representations in EW's statements and committal evidence are admissible because she is 'not available' because she is deceased. It is clear enough, in our view, that it will be possible for the jury to be apprised of the fact that EW is deceased without also being informed that she committed suicide.

68 So far as the sixth proposition is concerned, we consider that the applicant generally is bound by the way that the cross-examiner chose to question EW. His cross-examination may not have been particularly competent, and may not have been very helpful to the defence, but it does not follow that the product of that forensic exercise creates a danger of unfair prejudice to the applicant which outweighs the probative value of the evidence. The manner the cross-examiner employed to question EW arose from a forensic choice by which the applicant is now bound.

69 We pause to observe that our general conclusions concerning the admissibility of EW's committal evidence should not be seen as foreclosing the trial judge's discrete consideration - and possible exclusion - of particular parts of the cross-examination. Whilst it is plain that evidence of EW's witness statements and cross-examination at the committal is admissible under s 65(3) of the Act, in order to ensure that the applicant is not tried unfairly it will be necessary to exclude portions of the evidence; in particular, those parts of the cross-examination in respect of which the probative value is less than its potential prejudicial effect. Indeed, it seems to us that there is a deal of scope for the excision of a number objectionable tracts of the evidence. Subject to any agreement reached by the parties, whether any parts of the evidence are to be excluded will, of course, be a matter for the trial judge to determine following an appropriate application.

70 The final matter, the seventh proposition, is a feature that is common to all jury trials of alleged sexual offending against children. Alone, or in combination with other factors, it could not lead to the exclusion under s 137 of highly probative evidence such as EW's.

71 Moreover, we consider that any prejudice to the applicant flowing from EW's absence, and the corresponding introduction at trial of the representations contained in her statements and committal evidence, is amenable to acceptable amelioration by appropriately firm judicial directions. Thus, it might be expected that the judge will instruct the jury of the need to take into account the disadvantages flowing from an inability to observe EW giving her evidence.[28] It might also be expected that if, as anticipated, evidence from Professor Thomson and Dr Sullivan is introduced at trial casting doubt on the credibility and reliability of EW's evidence, the judge will give the jury appropriate warnings on those matters.[29]

72 The trial judge will also need to give detailed directions about EW's questioning at committal, which, in our view, could not properly be described as 'cross-examination'. It was, at best, clumsy and inept. As a minimum, the judge will need to direct the jury as to the differences between cross-examination at committal and at trial, and instruct the jury to take into account the disadvantages flowing to the defence from the incapacity of counsel at trial to now 'put' the defence case and matters important to it. Depending on the nature and extent of the editing of the evidence, the judge might also have to direct the jury on particular aspects of the cross-examination conducted at committal, including the dubious competence of parts of it. At the very least, directions along the following lines will be necessary:

Cross-examination of a witness that may be undertaken at a committal proceeding is not uncommonly quite different, and less pointed and directed, than cross-examination which might be expected to be undertaken of that witness at trial. In the present case, it is clear that the questioning by counsel on behalf of the accused at the committal proceeding was very different to cross-examination of the complainant which would have been undertaken at trial if she were available. In particular, at trial counsel would not have embarked on the free-ranging and undirected line of questioning undertaken by counsel at committal. Rather, counsel would have focused on the issues in the trial, and would have asked questions, directed to challenging the evidence of the complainant, and in particular to testing the accuracy and reliability of the memory that she said that she had of the incidents that are the subject of the charges against her. It is important you take this into account when you consider the evidence given by the complainant in her statements and in the committal proceeding.

73 In our view, save that we disagree with his observation as to the quality of EW's cross-examination, we consider the trial judge's decision not to exclude the impugned evidence under s 137 of the Act to be unattended by error.

75 As to the second proposed ground, counsel for the applicant also sought to invoke the common law unfairness discretion - in popular usage, the Haddara discretion - in an endeavour to have the impugned evidence excluded, relying on the same features advanced to support the application under s 137. Haddara recognised that there is a general discretion which, despite the promulgation of the Act, continues to inhere in a trial judge to exclude admissible evidence in order that an accused receive a fair trial.[30] In Luna it was pointed out that, unlike the judicial task under s 137, the judicial task when Haddara principles are invoked involves a true exercise of discretion, so that there can be no doubt that this Court's examination of the judge's ruling attracts House[31] considerations.[32]

76 For the same reasons that we would not uphold the applicant's challenge under s 137, we would not uphold the applicant's challenge to the judge's exercise of the Haddara discretion. Whilst we acknowledge that there will be some prejudice to the defence case resulting from EW's absence at trial, as things now stand, the extent of that prejudice is not of such an order to compel the conclusion that her absence will result in a trial that will be unacceptably unfair. In our view, any unfairness flowing to the applicant is not so great as to permit the removal of the very heart of the prosecution's case.

78 Once it is appreciated that the representations in EW's statements and committal evidence are admissible under s 65 of the Act, and that there is no warrant for their exclusion under s 137 or pursuant to the Haddara discretion, it is plain that there is no basis upon which a permanent stay of proceedings could properly be ordered.

79 In particular, the submission that the existence of the Phelan notes compels the conclusion that charges 1 to 32 are foredoomed to fail cannot be accepted.

80 When a stay of proceedings is sought on the basis that the charge or charges are foredoomed to fail, the principles to be applied are those laid down by the Full Court in Smith.[33] Those principles have been applied in a number of cases across several jurisdictions,[34] and are not in doubt.[35] Thus, a permanent stay of a charge on an indictment may only be granted if it is quite clear that the charge or charges inevitably must fail. For the purposes of the present application the Court should take the prosecution case at its highest. The Court must therefore approach the application as if each of the critical facts in the prosecution case was capable of being made out.[36]

81 In the present case, it cannot realistically be concluded that the contents of the Phelan notes necessarily will compel a jury to have a reasonable doubt about the credibility and reliability of EW's representations concerning the events which are the foundation of charges 1 to 32. Given the circumstances in which EW came to make her statements, and bearing in mind her evidence in the committal, we consider that it will be well open to a jury to be satisfied beyond reasonable doubt about the truth, credibility and reliability of the representations contained within them.

82 Furthermore, adding delay to the other matters relied upon to establish that there is prejudice to the applicant's case, we are unable to see that the continuation of the proceedings would involve unacceptable injustice or unfairness, or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.[37] There is nothing rare or exceptional about the circumstances of this case.[38] Hence, the judge would have erred had he acceded to the application to grant a permanent stay.

84 In light of the foregoing, leave to appeal against the interlocutory decision should be refused.

[1] To avoid the possibility of prejudice in the applicant's trial, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[3] Crimes Act 1958, s 47(1).

[4] Charges 1, 3, 4 to 25, 27 to 28, 30 to 32, 35 and 36.

[5] Crimes Act 1958, s 45.

[6] The statements each contained an acknowledgment signed by EW in the presence of a police officer that the statement is true and correct and is made in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury. See Criminal Procedure Act 2009, s 112(1).

[7] Haddara v The Queen [2014] VSCA 100; (2014) 43 VR 53 ('Haddara').

[8] A fourth ground - the first numbered ground in the applicant's Notice of Application for Leave to Appeal - was abandoned. It was formulated as follows:

In the circumstances of this case the learned trial erred in admitting the disputed evidence under s 65(3) of the Evidence Act.

[10] R v Birks (1990) 19 NSWLR 677, 689 (Gleeson CJ). See also Petty v The Queen (1991) 173 CLR 95, 102 (Mason CJ, Deane, Toohey and McHugh JJ).

[11] See s 65 of the Act at [38] below.

[12] See Evidence (Miscellaneous Provisions) Act 1958, s 32C.

[15] See [15] above.

[16] See Criminal Procedure Act 2009, s 41(1)(e)(iii) and s 42.

[17] We note that EW turned 16 years of age in December 1994.

[18] See [45] below.

[20] The first offence allegedly occurred on 13 November 1993.

[21] See footnote 8 above.

[22] IMM v The Queen (2016) 257 CLR 300, 314-5 [50] (French CJ, Kiefel, Bell and Keane JJ) ('IMM').

[23] IMM, 313 [44] (French CJ, Kiefel, Bell and Keane JJ).

[24] Compare ss 97 and 98 of the Act, which deal respectively with tendency evidence and coincidence evidence. Those sections require the relevant evidence to have 'significant' probative value.

[25] IMM, 314 [47], 314-5 [50] (French CJ, Kiefel, Bell and Keane JJ).

[28] See Jury Directions Act 2015, s 39.

[29] See Jury Directions Act 2015, s 32.

[30] Haddara, 59 [16], 70-77 [51]-[70] (Redlich and Weinberg JJA); 100-105 [158]-[175] (Priest JA dissenting).

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

[32] Luna (a pseudonym) v The Queen [2016] VSCA 10, [43] (Redlich, Priest and Beach JJA).

1. [33] R v Smith [1995] VicRp 2; [1995] 1 VR 10 ('Smith'). See also Nelson (a pseudonym) v DPP (Cth) [2014] VSCA 217; (2014) 44 VR 461, [6]-[11] (Maxwell P, Redlich and Priest JJA) ('Nelson').
2. [34] R v Leece (1996) 65 FCR 544 (Gallop, Burchett and Hill JJ); R v Petroulias (No 1) [2006] NSWSC 788; (2006) 217 FLR 242 (Johnson J); R v McGee [2008] SASC 328; (2008) 102 SASR 318 (Doyle CJ, Gray and White JJ); R v Azad [2007] VSC 115 (Curtain J); DPP (Cth) v County Court of Victoria [2010] VSC 157; (2010) 239 FLR 139 (J Forrest J); Nelson.
3. [35] The Full Court's decision was later overturned by the High Court in Smith v The Queen (1994) 181 CLR 338, but that was because it was held that the Full Court did not have 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.

[37] Hermanus (a pseudonym) v The Queen [2015] VSCA 2; (2015) 44 VR 335, 342-3 [39] (Priest JA). See also Walton v Gardiner (1993) 177 CLR 378, 392 (Mason CJ, Deane and Dawson JJ); Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 ('Jago'); 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.

[38] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 529; Jago, 31 (Mason CJ), 60 (Deane J), 76 (Gaudron J).