Director of Public Prosecutions (NSW) v Browne

1. [1]

   GLEESON JA: This is an appeal as of right by the Director of Public Prosecutions, pursuant to s 5F(2) of the Criminal Appeal Act 1912 (NSW), from an interlocutory judgment of the District Court ordering a permanent stay of two counts of an indictment dated 19 October 2017. Both counts charged the respondent, Mr Glenn Browne, with an offence of indecent assault of a person under the age of 16 years, contrary to (former) s 61E(1) of the Crimes Act 1900 (NSW). Count 1 is alleged to have occurred between 23 January 1983 and 10 December 1984. Count 2 is alleged to have occurred on 3 May 1990. Both counts involve a single female complainant, who cannot be named, who was aged 10 years at the time of count 1 and 17 years at the time of count 2.

2. [2]

   It is well-established that the grant or refusal of an application for a permanent stay is an “interlocutory judgment or order” within the meaning of s 5F: R v King (2003) 59 NSWLR 472 at 477; [2003] NSWCCA 399 at [22] (Spigelman CJ); Calleija v R [2012] NSWCCA 37 at [6] (Beazley JA) (as her Honour then was). The decision to refuse or grant a stay is discretionary and accordingly, the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40 apply to the determination of an appeal from any such decision which is discretionary in nature: Jago v District Court of NSW (1989) 168 CLR 23 (Jago) at 31 (Mason CJ); [1989] HCA 46.

Factual background

1. [3]

   The following factual background is taken from the transcript of the respondent’s (second) trial, which was tendered without objection as exhibit “A” on the stay application.

2. [4]

   The complainant was born in December 1972. She was adopted as a baby into a family, whom I will not refer to by name in order to protect the complainant’s identity. She was the fourth child in that family, comprising six children. Her elder sister, whom I will refer to as S, was nine years older. When S was about 16 years, she started to date the respondent. S and the respondent were the same age and the respondent was welcomed into the family. In 1983, when the respondent was aged about 19 or 20 years, the complainant was 10 years old and in year 5 at school; she turned 11 years on 10 December 1983.

3. [5]

   In August 2014, the complainant made a report to the police concerning four incidents. First, that when the complainant was 10 years old, the respondent placed his hand under her pants and rubbed around her genital area when he was babysitting her.

4. [6]

   Second, that when the complainant was 11 years old, the respondent came into her room in the family home and put his hand into her underpants and rubbed her genitalia.

5. [7]

   Third, that when the complainant was 16 years old, the respondent touched her vagina and kissed her while he was giving her a driving lesson.

6. [8]

   Fourth, that on 3 May 1990, when the complainant was 17 years old, the respondent put his hand over her breast and rubbed it and kissed her on the mouth when she was attending her grandmother’s wake.

7. [9]

   The complainant did not tell anyone about any of these incidents at the time. In 1990, when in year 12 at school, the complainant told her then boyfriend about what had happened. In 1996, the complainant spoke to her sister (M) and told her generally what had happened.

8. [10]

   On 22 December 2014, the complainant had a telephone conversation with the respondent which was covertly recorded by the police. It is not in dispute that during that telephone conversation the respondent stated, “I don’t recall touching you inappropriately … but that’s not, I’m not saying I didn’t, I’m just saying I can’t recall”.

Procedural background

1. [11]

   On 15 February 2015, the respondent was charged with four offences of indecent assault alleged to have occurred between 1983 and 1990. On 4 August 2016, the respondent was arraigned in the Newcastle District Court in relation to four counts (to which he pleaded not guilty):

2. [12]

   At the time of the alleged offences the subject of counts 1 and 2, (former) s 61E(1) was in the following form:

3. [13]

   At the time of the alleged offences the subject of counts 3 and 4, (former) s 61E(1) was in the following form:

4. [14]

   The respondent’s trial in the District Court commenced on 1 May 2017. The evidence in support of the Crown’s case included the evidence of the complainant, complaint evidence (to the complainant’s boyfriend in 1990 and to her sister in 1996) and evidence of the recorded call between the complainant and the respondent in December 2014.

5. [15]

   The jury was discharged on the fifth day of the trial, following two days of evidence including the complainant’s evidence, because the Crown Prosecutor had become ill on the third day and was unable to continue with the trial. The respondent obtained a certificate under the Suitors’ Fund Act 1951 (NSW), s 6A which entitled him to the recovery of a portion of the legal fees (not exceeding $10,000) that he had expended in respect of the first trial.

6. [16]

   A second trial in the Newcastle District Court commenced on 25 September 2017. The complainant’s evidence from the first trial, which was the subject of a DVD recording, was played to the jury. Evidence and addresses at trial occupied three days and concluded on 28 September 2017. On 3 October 2017, the jury returned verdicts of not guilty in respect of counts 2 and 3. The jury was unable to agree in respect of counts 1 and 4.

7. [17]

   On 19 October 2017, the Crown presented an indictment in the District Court in Newcastle in respect of the two remaining counts (previously counts 2 and 3 on the earlier indictment). The respondent pleaded not guilty to both counts.

8. [18]

   By notice of motion filed 18 January 2018, the respondent sought a permanent stay of the criminal proceedings. That application was supported by an affidavit of Mr Matthew Carney, the respondent’s solicitor, dated 18 January 2018 which outlined the procedural history of the criminal proceedings and annexed a number of court documents.

9. [19]

   Before the primary judge, counsel for the respondent contended that any further trial would be an abuse of process relying on four grounds: (1) delay and lost evidence; (2) that a third trial would be oppressive; (3) that the prosecution is doomed to fail; and (4) that any new trial would be unfair to the accused.

10. [20]

    In opposing the application for the permanent stay, the Crown indicated that it would not be relying upon the evidence relating to former counts 2 and 3 as context evidence, tendency evidence or relationship evidence.

11. [21]

    After a hearing on 14 March 2018, the primary judge delivered judgment on 16 May 2018 and ordered a permanent stay of the proceedings on the basis that the prosecution would be unfair and oppressive to the respondent.

12. [22]

    The primary judge rejected the respondent’s contention that the delay between the offences and the trial was such as to render the trial unfair. Her Honour also rejected the respondent’s contention that the prosecution was doomed to fail, where the two counts on the present indictment relate to different episodes of criminality. Her Honour added that she was not satisfied that a doubt with respect to original counts 2 and 3 would necessarily result in guilty verdicts on (original) counts 1 and 4 being inconsistent verdicts.

The primary judge’s reasons

1. [23]

   The primary judge referred to Calleija v R at [28]-[35] for the summary by Beazley JA of the general principles that apply to the grant of a permanent stay on the grounds of abuse of process.

2. [24]

   In finding that the prosecution would be unfair to the respondent, the primary judge gave the following reasons:

3. [25]

   In also finding that it was appropriate to grant a stay on the ground of oppression, the primary judge gave the following reasons:

Test for grant of permanent stay of criminal proceedings

1. [26]

   While there is no dispute as to the primary judge’s statement of the legal principles, the Director submitted that her Honour misapplied those principles. Accordingly, it is of assistance to outline the basic principles.

2. [27]

   First, in Jago, Mason CJ stated at 34 the central principle governing the grant of a stay in the following terms:

3. [28]

   In R v Edwards [2009] HCA 20; (2009) 255 ALR 399 the High Court (Hayne, Heydon, Crennan, Kiefel and Bell JJ) stated the test at [23] by reference to the earlier decision in Walton v Gardiner (1993) 177 CLR 378 at 392 (Mason CJ, Deane and Dawson JJ); [1993] HCA 77 (which involved an application for a stay of civil proceedings) as follows:

4. [29]

   Second, the relevant test of fairness involves a balancing process having regard to the interests of the accused, as well as the community’s right to expect that persons charged with criminal offences are brought to trial: Jago at 33 (Mason CJ). As Beazley JA emphasised in Calleija v R at [30], an essential consideration in the balancing exercise is the need to maintain confidence in the administration of justice: Walton v Gardiner at 395-396. See also Petroulias v R [2007] NSWCCA 154; (2007) 176 A Crim R 302 at [17] (Ipp JA).

5. [30]

   Third, a permanent stay of proceedings may only be ordered in an exceptional case: Barton v The Queen (1980) 147 CLR 75 at 116; [1980] HCA 48; Jago at 34; R v Glennon (1992) 173 CLR 592 at 605-606; [1992] HCA 16; Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 (Dupas) at [18].

6. [31]

   That the remedy of a permanent stay is an exceptional one is to be understood in the context that “there is an important public interest in the ordinary processes of the criminal law resolving criminal prosecutions”: R v Blackett (Decision Restricted) [2018] NSWCCA 114 at [42] (Leeming JA, Button and Fagan JJ agreeing). The significance of the public interest was emphasised in the joint judgment of the High Court in Dupas at [37]:

7. [32]

   Fourth, the onus lies on the applicant for a stay to demonstrate the disadvantage or prejudice is so unacceptable that it would lead to an unfair trial: Barron v Attorney-General for New South Wales (1987) 10 NSWLR 215 at 219, 223; R v Halmi [1999] NSWCCA 354 at [20]. That onus is a heavy one: Williams v Spautz (1992) 174 CLR 509 at 529; [1992] HCA 34; Agius v The Queen (2011) 80 NSWLR 486; [2011] NSWCCA 119 at [16]. In R v Petroulias (2005) 62 NSWLR 663; [2005] NSWCCA 75 at [103], Mason P referred to the applicant’s “high burden”.

Grounds of appeal

1. [33]

   The amended notice of appeal filed 25 July 2018 asserted four errors by the trial judge:

2. [34]

   The Director submitted that there can be no unfairness arising from the absence of a Markuleski direction (on a third trial) that does not relate to evidence not adduced at that trial. Nor could it be said that the absence of such a direction constitutes a “fundamental defect” in the trial.

3. [35]

   The submission continued that the absence of evidence on which a Markuleski direction might have been given in relation to original counts 2 and 3 could not justify a permanent stay of proceedings, given the heavy onus on the applicant for a permanent stay and the balancing process required to be undertaken, having regard to the interests of the accused and the public interest in having serious charges determined to finality. Nor, according to the submission, did the primary judge engage in any such balancing process.

4. [36]

   In regard to oppression, the Director submitted that since the primary judge took into account the respondent’s expenditure on legal fees in respect of the first and second trials, her Honour erred in not taking into account the Suitors’ Fund certificate that had been granted to him.

5. [37]

   The Director also emphasised the exceptional jurisdiction to grant a permanent stay. It was submitted that the respondent’s age (55 years) was not remarkable; there is no evidence that he is not in good health; and that the third trial was due to commence in July 2018, being a little over three years since the charges were first laid. The Director also submitted that neither the first or second trial could be said to be overly oppressive given the length of those trials and the circumstances in which the first trial was discontinued. Nor was there evidence that the respondent was not capable of running a third trial from a cost perspective.

6. [38]

   The respondent did not challenge her Honour’s rejection of his submissions based on delay, or that the proceedings were doomed to fail.

7. [39]

   The respondent submitted that to deny an accused the opportunity to have before the jury (on a re-trial) what the accused perceives as critical evidence that goes to the credibility of the complainant (in this case, evidence relating to the original counts 2 and 3) is unfair, and also unfairly denies the accused a Markuleski direction in relation to that evidence.

8. [40]

   The respondent further submitted that a new trial in regard to original counts 1 and 4 would allow the Crown to selectively put before the jury a significantly different case to that presented to the jury in the previous trial in the absence of relevant credibility evidence in regard to counts 2 and 3.

9. [41]

   Despite complaining about the absence of evidence relating to the complaints the subject of original counts 2 and 3, counsel for the respondent accepted in oral argument that the respondent could seek leave to cross-examine the complainant in relation to those allegations, but submitted that the forensic decision to adduce evidence relating to the complainant’s credibility “comes with its own minefield of risk” and described the position as a “lose/lose situation for the respondent” .

10. [42]

    The respondent also submitted that any re-trial (in isolation from the evidence in regard to original counts 2 and 3) would effectively deny the respondent the right of any future appeal on the ground of inconsistent verdicts.

11. [43]

    As to oppression, the respondent sought to uphold the primary judge’s reasoning and submitted that her Honour was correct to find that it would be oppressive for the respondent to be put to the further expense and stress of a third trial.

Ground 1 - Whether a fundamental defect in the trial

1. [44]

   The starting point is to identify the circumstances in which a Markuleski direction is given. In R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [186], Spigelman CJ referred to the requirement with respect to multiple counts that each count be treated separately, being supplemented, in a word against word case, by a direction to the “effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant’s evidence with respect to any count”. The suggested form of a Markuleski direction in the Criminal Trial Courts Bench Book published by the Judicial Commission of NSW (at [5-1590]) is as follows:

2. [45]

   It is not in dispute that the respondent would be entitled to a Markuleski direction with respect to the two counts on the present indictment: see, for example, Cawthray v R [2013] NSWCCA 105 at [48], a case involving a trial of two counts before a judge alone.

3. [46]

   The primary judge seems to have regarded the Crown’s decision in relation to the third trial not to adduce evidence relating to other complaints as impermissibly giving the Crown the opportunity to present a case on original counts 1 and 4 significantly different to that presented to the jury in the second trial. With respect, I do not agree. There is no unfairness to the respondent in the Crown not seeking to rely on evidence from the complainant in relation to other complaints (the subject of original counts 2 and 3) as either contextual, relationship or tendency evidence.

4. [47]

   The primary judge’s finding that there would be a fundamental defect in a third trial ignores the prosecutorial discretion as to when, and in what order (or combination), charges are laid. The Crown could have proceeded on a separate indictment for each count. Alternatively, the Crown could have filed an indictment joining some counts, and one or more separate indictments in relation to other counts. Often an accused in the position of the respondent would seek to sever multiple counts if charged on one indictment. In the case of separate trials of any of these four counts, the respondent would not have the benefit of a Markuleski direction in respect of counts previously tried or yet to be tried.

5. [48]

   Further, as counsel for the respondent acknowledged, it is open to the respondent to seek leave under s 293 of the Criminal Procedure Act 1986 (NSW) to cross-examine the complainant in relation to the credibility of her assertions which were the subject of original counts 2 and 3, with a view to challenging the complainant’s credibility in relation to the two counts on the present indictment. That the respondent may face a difficult forensic choice on a third trial does not mean that the continuation of the criminal proceedings is unfair to the respondent. That type of forensic decision would have arisen for the respondent, if any of the four charges had been the subject of a separate trial.

6. [49]

   The respondent’s argument that a new trial would involve unfairness because the not guilty verdicts returned at the second trial inevitably demonstrate a want of credibility in the complainant, should not be accepted.

7. [50]

   In R v Markuleski (at [219]-[221]), Wood CJ at CL warned against making such an assumption too readily with respect to a difference in verdicts (in that case, an acquittal and a conviction) and observed that the occurrence of different verdicts is entirely to be expected and is understandable. His Honour also noted that an acquittal does not amount to a positive finding that the act alleged did not occur, or that the evidence of the complainant was rejected as a lie or as lacking in credibility. See also: MG v R [2017] NSWCCA 14 at [87]; SM v R [2016] NSWCCA 171 at [11]-[14].

8. [51]

   In my view, the primary judge erred in finding that the absence of the benefit of a Markuleski direction in relation to original counts 2 and 3 would be a fundamental defect in any third trial in the sense of involving unacceptable injustice or unfairness to the respondent. Ground 1 has been established.

9. [52]

   One further matter should be mentioned. The primary judge correctly rejected the respondent's submission that if guilty verdicts should be returned on counts 1 and 4 in the third trial they would necessarily be inconsistent with the acquittals on counts 2 and 3 in the second trial and that an appeal on that ground would succeed. A different and contradictory argument was advanced in this Court, namely, that an unfair effect of trying counts 1 and 4 separately was that if there should be verdicts of guilty the respondent would not be able to appeal them on the ground of inconsistency with his acquittals on counts 2 and 3, the acquittals having been returned by a different jury. That argument, also, should be rejected. The outcome postulated is simply an incident of the separate trial of a number of charges against the same accused, which may commonly arise for a variety of reasons including the choice of the prosecution.

Ground 4 - Failure to undertake the balancing exercise

1. [53]

   There is a further difficulty with primary judge’s reasoning. The effect of a permanent stay of the criminal proceedings was to grant the respondent immunity from prosecution on the two counts on the present indictment. That involved an interference with the prosecutorial discretion of those responsible for laying charges and prosecuting criminal matters where a jury has been unable to reach a verdict on an earlier trial.

2. [54]

   While the primary judge referred to the applicable legal principles for the grant of a permanent stay, including that the test of unfairness involves a balancing exercise, her Honour did not go on and undertake that balancing exercise in the present case. In particular, her Honour did not consider the public interest in having the offences brought to trial, and the need to maintain public confidence in the administration of justice. Accordingly, the primary judge failed to apply the correct legal test. Ground 4 is also established.

Grounds 2 and 3

1. [55]

   Given the above conclusions, the second and third grounds can be dealt with briefly.

2. [56]

   As to the second ground, even accepting her Honour’s findings in relation to oppression (extracted at [25] above), including that the respondent would be put to further expense and stress of a third trial, again her Honour erred in failing to undertake the balancing exercise, having regard to the interests of the respondent and the legitimate interests of the community in having serious charges determined to finality.

3. [57]

   As to the third ground, it may be accepted that the primary judge did not expressly refer to the respondent having obtained a certificate under the Suitors’ Fund Act on 18 May 2017, when considering whether the third trial would be oppressive. However, for the reasons which follow I do not regard this omission as material.

4. [58]

   The relevant provisions of the Suitors’ Fund Act provide that where the hearing of any criminal proceeding is discontinued and a new trial ordered by the presiding judge for a reason not attributable in any way to disagreement on the part of the jury, then the amount payable under s 6A(1)(c) of the Suitors’ Fund Act shall not exceed, relevantly, $10,000: s 6A(1B)(a).

5. [59]

   While there was no evidence before the primary judge as to the actual amount received by the respondent in respect of the certificate obtained under the Suitors’ Fund Act, her Honour should be taken to be aware that the amount could not exceed $10,000. Given that there was no dispute before the primary judge that the respondent had incurred legal costs in relation to both trials in the order of $150,000, which far exceeded the benefit to the respondent of maximum amount of $10,000 obtainable under the Suitors’ Fund Act certificate, I do not consider that the primary judge’s failure to expressly advert to the likely quantum of this certificate constituted an error in the House v The King sense of failure to take into account a material consideration.

Re-exercise of discretion

1. [60]

   Since error has been established, it is necessary for this Court to exercise the discretion and determine whether the permanent stay application should succeed.

2. [61]

   The starting point is to emphasise the exceptionality of the jurisdiction to grant a permanent stay of criminal proceedings and the heavy onus on the applicant for a stay. This is not a case of incurable unfairness to the respondent caused by delay, or an incurable gap in the evidence sustaining an element of the charges such that the proceedings are doomed to fail.

3. [62]

   In this case, the application for a stay is based on asserted unfairness and oppression to the respondent through the prosecutorial decision to pursue a third trial in respect of two charges on which the jury in the second trial were unable to agree. The balancing exercise which the Court is required to undertake with respect to the alleged unfairness or oppression of a third trial calls for a broad evaluative judgment: Gilham v The Queen [2007] NSWCCA; (2007) A Crim R 72 at 131 (Spigelman CJ). Each case must be considered on its merits.

4. [63]

   Here, the first and second trials could not be said to be unfairly and unjustifiably oppressive given the length of those trials and the circumstances in which the first trial was discontinued, albeit through no fault of the respondent. It is not suggested that the respondent’s age or health would give rise to oppression in a third trial. Nor is there evidence that the respondent is incapable of funding a third trial, notwithstanding the significant amount already expended by the respondent in relation to the first two trials.

5. [64]

   This case is distinguishable from R v Lazarus [2017] NSWCCA 279 on which the respondent placed much reliance. R v Lazarus involved the discretionary power of the Court of Criminal Appeal to order a new trial following a successful Crown appeal. That discretion was to be exercised in the statutory context of s 104 of the Crimes (Appeal and Review) Act 2001 (NSW), having regard to the ultimate question of whether the interests of justice required a new trial to be had: Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; [1984] HCA 48. The Court (Bellew J, Hoeben CJ at CL and Davies J agreeing) concluded that it would be oppressive to put the accused in that case to the expense and worry of a third trial particularly given the fact that he was sentenced to a term of imprisonment of which he served 10 months before being released following the previous successful appeal against conviction. Those facts are quite different from this case.

6. [65]

   Turning to the balancing exercise in the present case, the respondent’s interests as the accused include that account be taken of his age (55 years), that he is of good character, that the two remaining counts concern matters occurring between 18 and 34 years ago, that he has already incurred considerable expense in excess of $150,000 (while receiving an amount of $10,000 under the Suitors’ Fund certificate in respect of the first trial) and that he would be put to further expense and stress in a third trial.

7. [66]

   Against these matters needs to be balanced the legitimate public interest of the community in having offences of alleged indecent assault brought to trial, and the need to maintain public confidence in the administration of justice.

8. [67]

   On balance, I am not satisfied that the respondent has demonstrated that this is an exceptional case where the Court should prevent the ordinary determination of the proceedings. Accordingly, the appeal should be allowed, the permanent stay ordered on 16 May 2018 be set aside, and the respondent’s motion filed 18 January 2018 be dismissed.

Orders

1. [68]

   I propose the following orders:

   1. (1)

      Appeal allowed.

   2. (2)

      Set aside the stay ordered by the District Court on 16 May 2018.

   3. (3)

      Dismiss the respondent’s notice of motion filed 18 January 2018.

2. [69]

   WALTON J: I agree with Gleeson JA.

3. [70]

   FAGAN J: I agree with Gleeson JA.