Victor Martin (a Pseudonym) v The Queen [2017] VSCA 328

1 The applicant has been charged with one charge of maintaining a sexual relationship with a child under 16, 12 charges of common assault, and one charge of intentionally causing injury. The complainant in relation to the charges is the applicant's biological daughter. Ten of the 14 charges (including the charge of maintaining a sexual relationship with a child under 16) are alleged to have been committed between 1 January 2005 and 31 July 2011. Three of the charges are alleged to have been committed between 20 June 2008 and 20 June 2009, and one charge is alleged to have been committed between 20 June 2007 and 20 June 2008.

2 On 3 July 2017, the trial judge in the County Court refused an application for a permanent stay. On 28 July 2017, the judge refused to certify under s 295(3) of the Criminal Procedure Act 2009 ('the Act') so as to enable the applicant to seek leave to appeal from the judge's decision refusing the stay.

3 The applicant applied for a review of the judge's refusal to certify under s 296 of the Act. Pursuant to s 296(4) of the Act this Court had to consider the matters provided for in s 295(3) in relation to certification and, if satisfied of the matters provided for in s 297 of the Act, could give leave to appeal. Section 297 of the Act provides that the Court of Appeal may give leave to appeal only if satisfied that it is in the interests of justice to do so having regard to a number of specified matters.

4 The application came on for hearing on 3 November 2017. At the conclusion of the hearing the Court determined to dismiss the application. The Court announced that reasons would be published. These are those reasons.

5 The charges the applicant is currently facing are not the first charges that the applicant has faced in relation to the complainant.

6 On 23 August 2011 the applicant was charged with 11 offences, which were later reduced to eight charges on an indictment filed in the County Court. On that indictment the applicant was charged with six charges of committing an indecent act on the applicant's wife in the presence of the complainant and her brother in July 2011, one charge of committing an indecent act on the complainant between 20 June 2007 and 19 June 2009, and one charge of incest against the complainant between 20 June 2007 and 20 June 2009.

7 The charges on the indictment filed in 2011 were resolved in March 2012 when the applicant pleaded guilty to four charges of committing indecent acts on his wife in the presence of the complainant and her brother, and three summary offences.

8 On 23 March 2012, the applicant was sentenced by Judge Maidment to two concurrent community correction orders of 12 months' duration for the offences to which he had pleaded guilty. In relation to the offending Judge Maidment said:

It seems to me that having regard to the facts set out in the Prosecution Opening, which are essentially agreed facts, and the submission made by your counsel on your behalf, I should find that these offences were not sexually motivated or motivated by any desire on your part to humiliate or denigrate your ex-wife. Rather, they were committed in circumstances where you were engaging in some kind of misguided horseplay. It does seem to me that the conduct is consistent with it being motivated by horseplay or some such description of mucking around by you with your ex-wife, rather than sexually motivated. I cannot be sure that you were intending to denigrate her but I am persuaded, on the balance of probabilities, that this was not sexually motivated.[1]

9 After the applicant had been sentenced as referred to, the complainant made further allegations against him which resulted in the charges he now faces. Although the period of the offending which was the subject of the charges on the indictment filed in 2011 falls within the period of the offending which is the subject of the current charges, none of the acts alleged to constitute the offences in the current charges are acts which were alleged to constitute the 2011 charges. It was accepted before the judge in the County Court and before us that, whilst the period of the offending overlapped, the two indictments dealt with different incidents.

10 The trial judge was first asked to permanently stay the charges in March 2017 and she delivered a ruling refusing that application on 20 March 2017.

11 In the 20 March 2017 ruling the trial judge referred to the earlier charges and to the plea that had been entered on those charges which she said had been entered after negotiation. The judge observed that it was clear that 'as part of a negotiated settlement' the prosecution had agreed not to proceed with the charges of committing an indecent act on the complainant and the charge of incest which were on the indictment filed in 2011.

12 The judge addressed the various charges and concluded that she was satisfied that the charges the accused is currently facing concerned different occasions to those on the indictment in 2011. There is now no dispute about that aspect of the matter.

13 Before the judge in March 2017 it was submitted on behalf of the applicant that the proceeding was oppressive because in practice 'if not in form' the prosecution was seeking to re-litigate matters which 'should have been' disposed of in the earlier proceeding. It was also submitted that the accused was disadvantaged because he was 'limited in his ability' to put to the complainant a motive to lie, being her dissatisfaction with the sentence imposed in 2012.

[I]n my view, this is not a case of successive prosecutions on the same facts, or re-litigations of charges previously determined or disposed of by way of negotiated plea. This is a circumstance where a child complainant made some limited allegations which resulted in the 2011 proceedings. She was, at that time, aged about 11. In 2012, still a child, still aged about 12, she made the further allegations which are the subject of this trial.

The Jury Directions Act makes clear that it is to be accepted that, firstly, people may react differently to sexual assault, that some may complain immediately, some may delay, some may not complain at all, and that delay is a common occurrence. In appropriate circumstances, juries are instructed that there may well be good reasons for delay.

This is not a case where there is any issue of double jeopardy, but I accept that the ambit of the permanent stay is a greater compass. This, however, does not fall into a category where, in substance if not form, it amounts to prosecutorial harassment. This is not, in my view, a circumstance which involves any element of oppression. Potential unfairness may be the subject of application, direction and ruling, as I have previously indicated.

What is clear from the authorities is that a permanent stay will only be ordered in the case not amenable to ruling, direction or other measure, which could be used to ensure a fair trial. I must be satisfied that the continuation of the trial would involve unacceptable injustice or unfairness or it will be so unfair or unjustifiably oppressive such that it constitutes an abuse of process. There is, of course, a notable weighing exercise. I must also consider the community interest in ensuring that persons who commit serious crimes are prosecuted.

In my view, no basis for a permanent stay has been made out. The application is refused.

The trial judge refused to certify that decision. She was not satisfied that there was sufficient doubt as to her ruling as to justify certification.

15 The applicant then applied to review the judge's refusal to certify in relation to her rejection of the application for a stay in March 2017. Whilst that matter was pending the complainant was cross-examined at a special hearing over a number of days in May 2017.

16 Before us, counsel for the applicant explained that when the application to review the refusal to certify in relation to the ruling in March 2017 came before this Court, he sought to rely upon material in the transcript of the special hearing which had not been before the trial judge and which had not been the subject of any submissions at the time of the ruling on the application for a permanent stay in March 2017. Counsel informed us that the Court considered the appropriate course was for the applicant to return to the trial judge and renew the application for a stay, relying upon the additional material. That is the course that was followed and the application concerning the March 2017 ruling was abandoned.

17 A fresh application for a permanent stay was then made to the trial judge, and on 3 July 2017 the trial judge ruled upon that application. She began her ruling by incorporating the reasons from the ruling she had given on 20 March 2017. The additional factor upon which the applicant relied was what was said to be the weakness in the prosecution case which had been revealed in the special hearing. It was not put that the weakness was such that the prosecution case was foredoomed to fail, but rather that the weakness of the prosecution case significantly shifted the balance in the discretionary considerations, and consequently moved this case into the exceptional category where a permanent stay should be ordered.

18 Before the trial judge on the renewed application the central contention was that the prosecution case relied on the complainant's credibility and that that credibility was entirely lacking. In that regard counsel referred the trial judge to prior inconsistent statements which had been put to the complainant in the course of the special hearing and to circumstances which were said to render the complainant incapable of belief. These circumstances were, so it was contended, that she had given evidence of seeing the applicant's foreskin when there was incontrovertible evidence that he had been circumcised as a baby, and evidence the complainant had given about the location of pubic hair on the 'top' of the applicant's penis. The trial judge relevantly ruled as follows:

In my view in the circumstances of this matter the credibility of the complainant is a matter for the jury. While there are arguments and contentions which will properly be the subject of both evidence and addresses, these are jury matters and there are factual findings to be made.

Neither alone nor in combination with the matters previously ruled upon do they satisfy the test for the ordering of a permanent stay. In coming to that view I have applied the test as set out in my prior ruling.

19 On 28 July 2017 the trial judge refused to certify.

20 It was accepted before us that the trial judge's decision to refuse a permanent stay was a decision to which the principles in House v The King[2] applied. Before an appellate court will interfere in a discretionary judgment of this kind it must be satisfied that the judge has acted upon a wrong principle, taking into account irrelevant matters, mistaken the facts, failed to take into account some relevant matter, or reached a conclusion which is unreasonable or plainly unjust so that the appellate court may infer that in some way there has been a failure to properly exercise the discretion. The applicant here relied upon the latter circumstance. The applicant did not contend that the judge had acted on a wrong principle, taken into account irrelevant matters or ignored relevant matters. Rather, the submission was that the decision was 'plainly unjust'.

21 In relation to the principles which apply on an application for a permanent stay they have been summarised recently in the relevant context by this Court in the following terms:

A court should only grant a permanent stay in rare or exceptional circumstances where 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". Unacceptable injustice or unfairness can result from "a probable forensic disadvantage which is incurable".[3]

22 The relevant considerations were set out in greater detail by Priest JA (with whom Maxwell P agreed) in Hermanus (A Pseudonym) v The Queen,[4] which in turn drew upon Osborn JA's judgment in R v FJL.[5]

23 It was submitted on behalf of the applicant that what had occurred in relation to the negotiated plea, the subsequent allegations, and the indictment charging further offences was grossly unfair. It was submitted that the applicant suffered significant forensic disadvantage because of this unfairness. It was submitted that he has been unable to assert 'a very real motive' for the making of false allegations, being the complainant's disappointment and anger at the sentence imposed in 2012. Further, it was submitted the applicant's good character could not be relied upon. The submission was that had all the charges been heard together in 2012, as they should have been, the applicant would have been in a position to call evidence of his good character. Given the way in which events have unfolded, it was submitted that he can no longer do so because the jury will be told of the guilty pleas which he entered in 2012. The applicant submitted that a relevant factor was the weakness of the Crown case and the applicant referred in that respect to numerous passages from the special hearing concerning prior inconsistent statements and statements made by the complainant which, on the applicant's case, were so bizarre as to be incapable of belief.

24 The authorities make it clear that a permanent stay will only be granted in an exceptional case. The trial judge's decision to refuse a permanent stay was a discretionary judgment to which the principles in House v The King apply.

25 In our view, the judge's refusal to certify was correct. It is clear that it was open to her to reach the conclusions which she did. Her ruling on 3 July 2017 is not arguably so unreasonable or plainly unjust as to enable an inference to be drawn that there has been an error, in the sense explained in House v The King.

26 This is not a case where there has been any prosecutorial misconduct or manipulation. The current charges could not have been dealt with in 2012 because the complainant had not made complaint in relation to them at that time.

27 The applicant's counsel made a forensic decision in the special hearing not to put to the complainant what he contends to be a potential motive to lie, being disappointment at the sentence imposed in 2012. That was a rational decision, but it was not the only option open. He could have sought rulings from the trial judge to enable him to put a motive to lie based on the complainant's disappointment at the outcome of her initial complaints without referring to the court proceedings or the convictions. Or, if he considered that the motive to lie was so cogent a consideration as to outweigh the risk of revealing the prior guilty pleas (bearing in mind Judge Maidment's observations, quoted earlier, as to the factual basis of those pleas), he could have taken the course of putting that motive to her. The forensic disadvantage identified is not such as to warrant interference with her Honour's ruling.

28 As to the issue of good character, as senior counsel for the prosecution submitted to us, there are ways in which the applicant could seek to have that issue dealt with without revealing the earlier guilty pleas and without misleading the jury. In any event, by his guilty pleas the applicant has admitted the conduct charged.

29 It is true that the complainant appears to have made a number of prior inconsistent statements and that some of the behaviour she describes can properly be described as bizarre. It is the unfortunate experience of this Court that those circumstances are not unusual in cases of this kind, although it must be said that some of the conduct described by the complainant here is extraordinary, even in the context of cases of this kind. As the trial judge ruled, these are matters for the jury.

30 For the above reasons we ordered on 3 July 2017 that the application to review the trial judge's refusal to certify be dismissed.

[1] Reasons for sentence, 23 March 2012, Judge Maidment, [6].

[2] [1936] HCA 40; (1936) 55 CLR 499, 505.

[3] Brewer (a pseudonym) v The Queen [2017] VSCA 117 [44] (citations omitted).

[4] (2015) 44 VR 335, 342-3.

[5] (2014) 41 VR 572.