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Clark v R

Clark v R

Case [2016] VSCA 96 10 May 2016

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0027

BRENT CLARK[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.

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JUDGES:	WEINBERG AP, ASHLEY and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 April 2016
DATE OF ORDERS:	21 April 2016
DATE OF REASONS:	10 May 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 96	1^st Revision 13 July 2016: para [37]
JUDGMENT APPEALED FROM:	DPP v [Clark] (Unreported, County Court of Victoria, Judge Quin, 5 February 2016) (Ruling)

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CRIMINAL LAW – Interlocutory application for leave to appeal – Sexual penetration of child under 16 (three charges) and sexual penetration of 16 or 17 year old child under care, supervision, or authority (three charges) – Jury unable to reach verdict on any charge at three previous trials for same charges – Prosecution seeking fourth trial – Same audio visual evidence led at each trial – Whether an abuse of process – Trial judge refused to grant permanent stay of proceedings – Whether trial judge influenced by impermissible factors – Specific error – Leave to appeal granted – Appeal allowed – Decision of trial judge set aside – Remitted for rehearing by different judge

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C T Carr	Doogue O’Brien George
For the Crown	Mr G J C Silbert QC with Ms S A Flynn	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG AP
ASHLEY JA
COGHLAN JA:

On 21 April 2016, this Court heard and determined an application, pursuant to s 295 of the Criminal Procedure Act 2009, for leave to appeal against the refusal of a County Court judge to grant a permanent stay of a trial in what were surely unique circumstances. The applicant had already stood trial on the same charges on three previous occasions, and on each of those occasions the jury had been unable to agree. This was to be a fourth trial, in itself an extraordinary occurrence. Moreover, for reasons that will be explained, this fourth trial was to be conducted on the basis of precisely the same evidence as had been led in each previous trial.

We granted leave to appeal, allowed the appeal instanter, and set aside the decision below. We ordered that the matter be remitted to the County Court for rehearing, and said that we would publish our reasons at a later date. These are those reasons.

Introduction

Never before, so far as we can tell, has the prosecution in any common law jurisdiction sought to try an accused for a fourth time after three previous trials where, on each occasion, the jury were unable to reach a verdict.[2]
[2]Quite apart from the Court’s own research, counsel for the parties stated that they had not found any such case.

Not surprisingly, the applicant argued before the trial judge that this attempt to try him a fourth…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clark v R

Details

AGLC: Clark (a Pseudonym) v The Queen [2016] VSCA 96
Case: [2016] VSCA 96
Decision Date: 10 May 2016

CaseChat Overview and Summary

The case of Clark v R involves an appellant, Clark, who has been charged with six counts of sexual penetration involving minors. The proceedings have been marked by the jury's inability to reach a verdict at three previous trials for the same charges. The prosecution seeks a fourth trial, relying on the same audiovisual evidence that was presented in the previous trials. The crux of the matter is whether a fourth trial constitutes an abuse of process and whether the trial judge was influenced by improper factors in denying a permanent stay of proceedings. The court was required to determine if the trial judge made a specific error warranting appellate intervention and if the refusal to stay the proceedings was erroneous.

The legal issues before the court revolved around the principle of double jeopardy and the abuse of process doctrine. The appellant argued that a fourth trial would be an abuse of process given the previous outcomes and the identical evidence. The court needed to assess whether the trial judge had made a specific error in his refusal to stay the proceedings, potentially influenced by impermissible considerations. The court also had to examine whether the refusal to grant a permanent stay amounted to a miscarriage of justice.

In granting leave to appeal, the court found that the trial judge had indeed erred by not recognising the potential for an abuse of process and by not considering the implications of a fourth trial. The appellate court held that the trial judge's decision was influenced by factors that were irrelevant to the legal principles governing the case. Consequently, the decision of the trial judge was set aside, and the matter was remitted for rehearing by a different judge. The court's ruling underscores the importance of ensuring that judicial processes are not abused and that trial judges remain impartial and attentive to legal principles.

Orders