Director of Public Prosecutions v Vidanaralalage

[2024] ACTSC 61

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Vidanaralalage

Citation: 

[2024] ACTSC 61

Hearing Date: 

12 March 2024

Decision Date: 

12 March 2024

Before:

Mossop J

Decision: 

1.   Note that the Director of Public Prosecutions seeks to withdraw charges CAN5342/2022, CAN5343/2022, and CAN5344/2022.

2.   Dismiss each of charges CAN5342/2022, CAN5343/2022, and CAN5344/2022.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Principle of incontrovertibility – where accused subject of charges on indictment and transfer charges for closely related alleged conduct – where accused acquitted on all charges on indictment – where transfer charges remain to be disposed of – whether open to prosecution to continue to prosecute transfer charges – Director of Public Prosecutions seeks to withdraw transfer charges – transfer charges dismissed

Legislation Cited: 

Crimes Act 1900 (ACT), ss 28(2)(a), 53, 54(1), 60(1)

Court Procedures Rules 2006 (ACT)

Director of Public Prosecutions Act 1990 (ACT), s 7

Supreme Court Act 1933 (ACT), Pt 8

Cases Cited: 

Booth v The Queen [2022] ACTCA 46; 18 ACTLR 222

Parties: 

Director of Public Prosecutions

Lakshman Ranasinghe Vidanaralalage ( Accused)

Representation: 

Counsel

S Saikal-Skea ( DPP)

J Maher ( Accused)

Solicitors

Director of Public Prosecutions

Tim Sharman Solicitors ( Accused)

File Numbers:

SCC 231 of 2022

SCC 232 of 2022

MOSSOP J:

1․On 8 March 2024, the accused, Lakshman Ranasinghe Vidanaralalage, was acquitted by a jury on four charges. They were:

(a)a charge of choking the complainant, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) (count 1);

(b)a charge of assaulting the complainant with intent to engage in sexual intercourse, contrary to s 53 of the Crimes Act (count 2);

(c)a charge of sexual intercourse without consent, contrary to s 54(1) of the Crimes Act (count 3); and

(d)a charge of committing an act of indecency without consent, contrary to s 60(1) of the Crimes Act (count 4).

2․The accused also faces three transfer charges of common assault (CAN5342/2022, CAN5343/2022, and CAN5344/2022).

3․Charge CAN5344/2022 is a back-up charge for count 2 on the indictment, that is, assaulting the complainant with intent to engage in sexual intercourse. Charges CAN5242/2022 and CAN5343/2022 are related offences.

4․All transfer charges must be dealt with in accordance with Pt 8 of the Supreme Court Act 1933 (ACT).

5․All the allegations related to events which are said to have occurred on a single night, the night of 31 May 2022 to 1 June 2022, between the hours of approximately 10pm and 3am. [Redacted].

6․The relationship between the charges was that they were alleged to have occurred in the following order:

(a)charge CAN5342/2022, a common assault charge; followed by

(b)count 1, the charge of unlawful choking; followed by

(c)charge CAN5343/2022, a transfer charge of common assault; followed by

(d)count 2, sexual assault in the third degree for which charge CAN5344/2022, a further transfer charge of common assault, was the back-up charge; followed by

(e)count 3, sexual intercourse without consent; followed by

(f)count 4, an act of indecency without consent.

7․It is unnecessary to go into any detail in relation to the allegations, other than to note that they were all closely related allegations.

8․Counsel for the Director has identified the closely related nature of the transfer charges to the charges on the indictment, on which the jury found the accused not guilty. She has also pointed to the decision of Booth v The Queen [2022] ACTCA 46; 18 ACTLR 222, which indicated that the continuation of a prosecution where there is manifest inconsistency between the prosecution case and the basis for an earlier acquittal would amount to an abuse of process. In Booth, the court determined that a charge of property damage following an acquittal on a related charge would amount to an abuse of process and that the prosecution should have been stayed. In light of the intermingled circumstances relating to the allegations in the present case and the decision in Booth, counsel for the Director now seeks to withdraw the transfer charges.

9․In relation to summary charges not included on an indictment, there is no statutory provision equivalent to that in s 7 of the Director of Public Prosecutions Act 1990 (ACT) which empowers the Director to file a Notice Declining to Proceed. In the absence of a statutory provision or a provision of the Court Procedures Rules 2006 (ACT) providing that the withdrawal of a summary charge by the Director is sufficient to finalise that charge, I consider that the appropriate course is to note the Director’s intention to withdraw the transfer charges, and to then dismiss them. That makes clear the reason for the dismissal and the reason that the substance of the charges has not been dealt with, but also, by dismissing the charges, makes it clear that they have been finalised.

10․For those reasons, the orders of the Court are:

1.Note that the Director of Public Prosecutions seeks to withdraw charges CAN5342/2022, CAN5343/2022, and CAN5344/2022.

2.Dismiss each of charges CAN5342/2022, CAN5343/2022, and CAN5344/2022.

I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 28 March 2024